The defense attorney representing a 24-year-old Rio Grande City man over allegations he was intoxicated a little more than two years ago when he caused a fatal crash wants the case tossed because the McAllen Police Department lost evidence.
Police allege David Garcia Jr. was behind the wheel of a black 2008 Chevrolet Silverado when he T-boned a gold 2007 Dodge Durango and killed 2-year-old Patricia Vargas and 52-year-old Alma Patricia Rodriguez, as well as sending seven others to the hospital with serious injuries.
A Texas Department of Transportation crash report says the toddler was not restrained by a child safety or booster seat and was ejected from the vehicle and that six of the vehicle’s nine passengers were not wearing seat belts, including Rodriguez, who died; a 1-year-old; 3-year-old; 17-year-old; and 19-year-old.
The crash happened at approximately 2:44 a.m. in the 800 block of North 10th Street on Aug. 25, 2019.
Garcia was later indicted on two counts of intoxication manslaughter and seven counts of intoxication assault. He has pleaded not guilty and bailed out of jail on March 11, 2020, on a total of $86,000 in bonds, records show.
On the night of the crash, McAllen officer Jose Razo responded to the scene and deployed a new scanning and measuring system called the FARO System, which records, measures, scans and photographs all the physical evidence at the scene.
While Razo was trained in the new system, he testified during a hearing in May that he had never actually used it until that morning, according to a transcript that is an exhibit in defense attorney Calixtro Villarreal’s motion to dismiss, which was filed on Tuesday.
The new technology Razo was using takes all of the measurements virtually so Razo testified that he did not physically mark the scene.
“The idea is with that program, you don’t need to, you know — like I got there and I took it for granted, and I scanned the scene and it’s meant to — all the measurements are virtual. You do not have to, you know, do anything because everything is done for you. So I took that for granted,” Razo testified. “I didn’t mark the scene, and it was like one of the — if not the first one, but one of first ones to actually use it. You know, we hadn’t even implemented a system yet to like how to do it, how to install it and all that.”
Villarreal discovered that this evidence was lost during the discovery process in Garcia’s case where prosecutors turn over evidence to the defense.
In criminal cases involving crashes, defense attorneys always seek evidence related to the reconstruction of the crash scene, including field notes, which is exactly what Villarreal did.
However, in Garcia’s case, that evidence does not exist because it was accidentally erased by Razo.
The officer’s testimony during that May hearing revealed that the evidence was on an SD card that he left at the McAllen Police Department after the accident that he later used again, recording over and erasing the evidence from the night of the crash.
“Once you overlap that system, part of the default is when you start a new scene it reformats the card. It starts saving new data on it, and that was pretty much it,” Razo said.
The District Attorney’s Office has not yet filed a response to the motion.
A hearing on the matter had been set to be heard Friday morning in front of state District Judge Fernando Mancias, but was rescheduled to be heard in early October.
