EDUARDO SANCHEZ,

Appellant, 

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-20-00179-CR

Appeal from the

243rd District Court

of El Paso County, Texas

(970D11378)

O P I N I O N

Appellant, Eduardo Sanchez, appeals the denial of his motion for DNA testing. TEX.CODE 

CRIM.PROC.ANN. art. 64.01. Appellant asserts the trial court erred on three grounds. First, the trial 

court erred when it did not address Appellant’s motion to appoint a DNA expert; second, when it

found there was no reasonable likelihood the Puma shoes contained biological material; and third,

that Appellant did not establish by a preponderance of the evidence that he would not have been 

convicted if exculpatory results had been obtained through DNA testing. TEX.CODE 

CRIM.PROC.ANN. art. 64.03. We affirm. 

BACKGROUND

Factual Background

On the night of October 20, 1997, Appellant, the victim, Osvaldo Vargas Jr., and another 

individual, Raul (a.k.a. Rudy) attended a party in Horizon City, Texas. At approximately 10:30 

p.m., Appellant and Raul left with Vargas to go buy more beer. On the way to the store, Appellant 
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asked Vargas “[d]o you want to kill me?” Vargas said “[y]eah” and punched the back of 

Appellant’s head. In response, Raul punched Vargas, and Appellant shot Vargas using a sawn off 

.22-caliber rifle. Appellant shot Vargas two more times while Raul continued to punch and kick 

him. After shooting Vargas, Appellant left the rifle and returned to the party with Raul. A witness 

testified Appellant’s pants, shirt, and black Puma shoes were covered in blood. Appellant and Raul 

changed their clothes at the party and left with their blood-stained clothing in a plastic bag. 

Appellant and Raul returned to hide Vargas’ body and destroy their blood-stained clothing where 

they found Vargas still alive. Raul began to punch and kick Vargas and placed the plastic bag over 

his head to suffocate him. Afterwards, Appellant and Raul returned to the party.

The Investigation & Evidence

Detectives from the El Paso County Sheriff’s Office and the Horizon City Police 

Department began an investigation after receiving reports of gun shots in the area and a missing 

person’s report from Vargas’ family. Law enforcement discovered Vargas’ body in a desert area 

alongside a road. After searching the area and other locations, two .22-caliber projectiles, a live 

.22-caliber round, a .22-caliber casing, a sawed-off stock from a rifle, several pairs of jeans, several 

shirts, a pair of overalls, five pairs of shoes, a San Francisco Forty-Niners poncho, and a Dallas 

Cowboys jacket were found. Law enforcement noticed several sets of shoe prints surrounding the 

crime scene and took casts of the prints. 

A witness testified they had seen Appellant with a sawn off .22-caliber rifle previously. 

The same witness confirmed the gun found at the scene was the one seen in Appellant’s possession. 

Another witness testified Appellant was wearing a San Francisco Forty-Niners poncho like the one 

found at the site. The Texas Department of Public Safety performed DNA testing on three sticks, 

an ignition switch, a rifle buttstock, several pairs of jeans, several shirts, a pair of overalls, five
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pairs of shoes, a Dallas Cowboys jacket, and the San Francisco Forty-Niners poncho. The testing 

revealed DNA consistent with Vargas’ DQ Alpha subtype on a pair of Nike shoes, a pair of jeans, 

the Cowboys jacket, and the San Francisco Forty-Niners poncho. Approximately 5.4 percent of 

Hispanics have this specific DQ Alpha subtype. Autopsy revealed Vargas was ultimately killed by 

blood loss from a bullet wound perforating his left common carotid artery and jugular vein.

Based on information acquired from the crime scene and witness testimony, law 

enforcement searched Appellant’s home. The search yielded a pair of black Puma shoes. The sole 

pattern on these shoes matched the casts of shoe prints taken from the crime scene. The shoes 

appeared to contain blood stains, but tests did not indicate the presence of blood. Appellant fled to 

Mexico after learning he was being sought by law enforcement. Approximately one month later, 

Appellant surrendered himself at the US-Mexico border. 

While in custody, Appellant made a signed written statement regarding the events of the 

murder. Appellant stated on the night of October 20, 1997, he attended a party at a friend’s house 

with Raul, and Vargas. Appellant described the clothes he wore that night and the sawed off .22-

caliber rifle concealed in the waistband of his pants. He explained how as he, Vargas, and Raul 

walked to go get beer they got into an altercation, and admitted he shot Vargas. According to 

Appellant, he and Raul returned to the party to change clothes and then returned to the scene to 

destroy their blood-stained clothing. At which point they noticed Vargas was still alive and placed 

a plastic bag over his head to suffocate him. Finally, Appellant stated he got scared when he learned 

law enforcement was looking for him and fled to Mexico.

Procedural Background

Appellant was indicted of murder of Osvaldo Vargas, Jr. TEX.PENAL CODE ANN.

§ 19.02(A)(1). Following a trial, the jury returned a guilty verdict, and the trial court sentenced 
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Appellant to 50 years’ imprisonment. On January 28, 2020, Appellant filed a motion for DNA 

testing under Chapter 64 of the Code of Criminal Procedure seeking to have the black Puma shoes 

found at his residence tested. On June 18, 2020, Appellant requested the trial court appoint a DNA 

expert to re-test the purported biological evidence. No order was entered either denying or granting 

the motion for appointment of a DNA expert. The trial court denied Appellant’s motion stating 

Appellant failed to demonstrate entitlement to DNA testing under Chapter 64. Specifically, the 

trial court found, Appellant failed to demonstrate the Puma shoes had a reasonable likelihood of 

containing biological material, and that he would not have been convicted if exculpatory results 

had been obtained through DNA testing of the Puma shoes. TEX.CODE CRIM.PROC.ANN. art. 64.03.

Appellant subsequently filed a petition for writ of mandamus in this Court, alleging the trial court 

had failed to appoint counsel to represent him in his motion for DNA testing. This Court denied 

Appellant’s petition in In re Sanchez, No. 08-20-00126-CR, 2020 WL 5015446 (Tex.App.—El 

Paso Aug. 25, 2020, orig. proceeding)(mem. op., not designated for publication). This appeal 

followed.

DISCUSSION 

Issues

Appellant alleges the trial court erred: (1) when it denied his motion for a DNA expert; (2)

when it found there was no reasonable likelihood the Puma shoes contained biological material;

and (3) Appellant did not establish by a preponderance of the evidence he would not have been 

convicted if exculpatory results had been obtained through DNA testing.

Applicable Law & Standard of Review

Chapter 64 allows a convicted person to submit a motion to the convicting court for 

forensic DNA testing of evidence that has a reasonable likelihood of containing biological 
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material. TEX.CODE CRIM.PROC.ANN. art. 64.01. The burden is on the convicted person to prove 

the evidence has a reasonable likelihood of containing biological material. State v. Swearingen, 

424 S.W.3d 32, 37 (Tex.Crim.App. 2014). However, Article 64.01 does not entitle the convicted 

person to any preliminary testing that would merely be a predicate to a subsequent DNA test, this 

includes initial testing to determine if evidence contains testable biological material. Routier v.

State, 273 S.W.3d 241, 250 (Tex.Crim.App. 2008)(Chapter 64 does not allow for non-DNA testing 

as a predicate for post-conviction DNA testing). In addition to demonstrating the evidence has a 

reasonable likelihood of containing biological material, the convicting court may only grant an 

order for forensic testing if: (1) the evidence still exists and is in a condition making DNA testing 

possible; (2) the evidence has been subjected to a chain of custody sufficient to establish that it has 

not been substituted, tampered with, replaced, or altered in any material aspect; (3) there is a 

reasonable likelihood that the evidence contains biological material suitable for DNA testing; (4) 

identity was or is an issue in the case; and (5) the convicted person must be able to establish by a 

preponderance of the evidence that the person would not have been convicted if exculpatory results 

had been obtained through DNA testing and the request for DNA testing is not made to 

unreasonably delay the execution of sentence or administration of justice. TEX.CODE 

CRIM.PROC.ANN. art. 64.03. 

When reviewing a trial court’s ruling on a Chapter 64 motion for post-conviction DNA 

testing, this Court will afford the trial court almost total deference in determination of historical 

facts and in the application of law to those facts when they turn on witness credibility and 

demeanor. Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). All other applications of law 

to fact questions are reviewed de novo. Id.
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Preponderance of Evidence Appellant Would Have Been Acquitted if Exculpatory Results 

Had Been Obtained Through DNA Testing

We address Appellant’s third issue first because it is dispositive of Appellant’s arguments. 

If the trial court’s decision is upheld, then Appellant’s remaining issues become moot.

TEX.R.APP.P. 47.1. If the evidence from Appellant’s motion for DNA testing is insufficient to 

create a 51 percent likelihood Appellant would not have been convicted, then there is no need to 

address whether Appellant satisfied the other requirements for DNA testing under Article 64.03 or 

whether he was entitled to appointment of a DNA expert. 

Appellant argues the court erred when it found he failed to establish by a preponderance of 

the evidence he would not have been convicted if exculpatory results had been obtained by DNA 

testing of the Puma shoes. Appellant asserts DNA testing would show Vargas’ DNA was not 

present on the Puma shoes and this information would be sufficient to create a 51 percent

likelihood that Appellant would not have been convicted. 

Analysis

For an appellant to be entitled to post-conviction DNA testing under Chapter 64, he must 

demonstrate by a preponderance of the evidence he would not have been convicted if exculpatory 

results had been obtained through DNA testing. TEX.CODE CRIM.PROC.ANN. art. 64.03(a)(2)(A). 

The exculpatory results must be weighed against the other evidence brought against Appellant to 

determine if there is a 51 percent likelihood Appellant would not have been convicted. Holberg v.

State, 425 S.W.3d 282, 286-87 (Tex.Crim.App. 2014). Appellant argues the State relied heavily 

upon the evidence of blood on Appellant’s clothing and Puma shoes during the trial. He asserts 

DNA testing would show the Puma shoes were not covered in blood and any biological material 

present did not contain Vargas’ DNA. Appellant argues those results would have been sufficient 
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to weaken the State’s assertions at trial, such the jury could have reasonably declined to convict 

Appellant. 

However, even if DNA testing conclusively proved the lack of Vargas’ DNA on the Puma 

shoes, there is significant physical evidence connecting Appellant to the murder. Appellant’s other 

clothing tested positive for the presence of DNA consistent with Vargas’ DNA. DNA testing 

performed by the Texas Department of Public Safety on several pieces of clothing recovered at the 

scene, including the San Francisco Forty-Niners poncho a witness identified Appellant wore the 

night of the murder. Testing showed the San Francisco Forty-Niners poncho, and a pair of jeans

contained DNA consistent with Vargas’ DQ Alpha subtype. Additionally, casts of several sets of 

shoe prints taken at the scene of the crime matched the Puma shoes found at Appellant’s home.

This physical evidence connecting Appellant to the murder would cut against the absence of 

Vargas DNA on the Puma shoes.

Further, the State’s arguments at trial were not merely reliant upon the blood found on 

Appellant’s clothing or other physical evidence. Appellant made a detailed signed written 

statement that corroborated the physical evidence and witness testimony. Appellant’s own 

statement admitting to the shooting of Vargas is strong, compelling evidence coupled with the 

physical evidence and witness testimony that corroborated it. 

In his statement, Appellant explained how he attended a party with Vargas and Raul and 

then they left together to buy beer. A witness also testified Appellant was seen with Vargas during 

the party, and they later left together shortly before Vargas’ time of death. Appellant wrote in his 

statement he was wearing a Forty-Niners poncho. A witness testified he saw Appellant wearing a 

Forty-Niners poncho at the party. A similar poncho was also recovered from the scene and tested 

positive for DNA consistent with Vargas’ DQ Alpha subtype.
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Appellant also stated he was carrying a sawn off .22-caliber rifle in his waistband when he 

was at the party. The witness testified he had seen Appellant carrying a .22-caliber sawn off rifle 

at the party. Appellant admitted he shot Vargas several times while Raul punched and kicked him. 

Appellant stated after he shot Vargas, he dropped the rifle before leaving the area. The same 

witness later identified the discarded rifle found at the scene of the crime as the same one carried 

by Appellant earlier that evening. Appellant stated when he returned to the party, his clothes were 

covered in blood. Those same witnesses testified Appellant returned to the party without Vargas

and visibly covered in blood. The witness was familiar with both Appellant and Vargas, so it is 

extremely unlikely Appellant or Vargas were misidentified. 

As such even if Appellant’s motion for a DNA expert had been granted, if the Puma shoes 

did contain biological material, and if testing revealed the absence of Vargas’ DNA, the testing

evidence would be insufficient to show a 51 percent likelihood Appellant would not have been 

convicted. The cumulative amount of evidence incriminating Appellant is substantial and a jury 

could reasonably have found Appellant committed the murder of Osvaldo Vargas, Jr. regardless 

of the presence or absence of DNA on the Puma shoes. Accordingly, Appellant has failed to satisfy 

his burden under Article 64.03 and is not entitled to post-conviction DNA testing.

CONCLUSION

Appellant failed to show that any exculpatory results obtained from DNA testing would be 

sufficient to satisfy Article 64.03’s requirement that by a preponderance of evidence he would not 

have been convicted. We overrule Appellant’s third issue. As a result, we need not address his first 

and second issue. TEX.R.APP.P. 47.1

Consequently, the trial court’s decision to deny Appellant’s motion for post-conviction 

DNA testing is affirmed.
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June 16, 2021

YVONNE T. RODRIGUEZ, Chief Justice

Before Rodriguez, C.J., Palafox, and Alley, JJ.

(Do Not Publish)