Attorneys of Man Facing Capital Murder Request Granting of Seven Motions

SAN ANGELO, TX - This afternoon, District Attorneys for the State of Texas and Defense attorneys of Fernando Lavaris, Jr. 30, met for a Criminal Pre-Trial this afternoon in Judge Barbara Walther's 51st District Court. Prior to the Pre-Trial, and as Judge Walther convened for a private discussion, friends, family, Tom Green County Sheriff Deputies and prosecutors waited outside the courtroom doors.

The Pre-Trial was set for 3 p.m., but because of the private session, it started at 3:25 p.m. When the doors opened to the courtroom, everyone moved their way in and took a seat. Lavaris silently sat between his two lawyers.

Lavaris face Capital Murder by Terror Threat and Assault on a Public Servant.

On August 31, 2015, Lavaris and co-defendants Jonathan Marin, Eric Martinez, and Elisa Losoya were part of a burglary gone bad. William Valdez, 69, was shot during the burglary, and later died from his injuries. For more information on this story, click here and here.

On October 30, 2014, Lavaris assaulted a public servant. The Indictment stated, “THE STATE OF TEXAS vs. FERNANDO LAVARIS JR., was legally and finally convicted of Assault on a Public Servant, a third degree felony, upon a charging instrument then pending in that Court, and of which that Court had jurisdiction.”

Today’s Pre-Trial was for addressing scheduling and motions entered by the Defense.

As of now, Walther explained that trial date is set for February 4, 2017. The State responded, “They [the Defense] intend to file a continuance.” A continuance is the postponement of a hearing, trial or other court proceedings, made by either or both parties.

For scheduling of the next pre-trial, the Defense asked Walther if they could “set a pre-trial as close to November 21 as possible.” Walther responded, “What does the schedule look like on Nov. 28? Would you all be available Nov. 28, if the court is available?”

Both the State and Defense did not have a problem with this date. Walther added that the court would notify them when the date is approved.

In addition to filed motions this morning, some are complete and some will have to be taken up in the future Pre-Trial. This afternoon, seven motions were presented to Judge Walther.

The first motion addressed was the Defendant’s motion for production of grand jury transcript. In this motion, the defense would like to obtain a written transcript of the testimony of any witnesses who had testified before the grand jury.

The second motion discussed was a discover motion. This motion was to discover the State’s extraneous and/or unadjudicated acts of misconduct and prior convictions to be offered at guilt or punishment.

Lavaris was indicted by a grand jury for Capital Murder, and the State is seeking the death penalty. The discover motion will deny Lavaris from his 5th, 6th, 8th and 14th Amendments to the United States Constitution and article one, section three, 10, 15 and 19 of the Texas Constitution. This is if the defendant does not have sufficient time to investigate all acts, misconducts or prior convictions that the State may present during his trial.

The State said, “We will produce the Defense with all material we have.”

The third motion brought to Walther’s attention was a motion for production of exculpatory, impeachment and mitigating evidence. This motion produced by the Defense will ensure that the prosecution sees its obligation to provide and produce all evidence which is exculpatory, impeaches a witness, or mitigates punishment.

During the trial, the Defense was giving many examples of what this motion could produce. However, these examples only had Walther confused on what the Defense was asking of the court.

The Defense gave examples such as, if the State had records of the Defendant suffering from child abuse when he was younger, or found CPS records, or a Father's arrest record, they would have to supply that evidence to the Defense.

In response to these examples, Walther asked, “Are you asking the State to search for records from CPS to mediate your client?"

The Defense responded, “As I said, these are just examples.”

As Walther and Defense wnt back and forth, the State said, “Your honor, it looks like the motion is asking for more general, and that’s okay.”

After this discussion, both the State and Defense signed off on the discovery order. The Defense stated, “We’ll submit an agreed order to the court.”

The fourth motion brought up was about Lavaris being in restraints. The Defense said they would like for Lavaris to not be shackled in public.

The Defense gave the argument that if Lavaris is in shackles in the courtroom, that will make the jury see him as dangerous and assumed as guilty.

Walther added that this would have to be evaluated by the Sheriff’s Department. The Defense then said, “We will visit with the Sheriff’s [Office] and get the court’s ruling.”

Another motion given by the Defense included the Defendant's election for the jury to assess his punishment. State records state that, in open Court at the time of entering his plea and, in accordance with Tex. Code Crim. Proc. Ann., Art. 37.07, elects that the punishment upon any conviction for a lesser included offense in this case be assed by the jury."

Next motion on the agenda was for Lavaris to be able to wear street clothes at all pre-trial and trial proceedings in open court. With this, the Sheriff’s Department will have to be asked first as well.

If approved, Lavaris will be allowed access to his civilian clothes before he comes to court, so that he may appear in them.

Lastly, the final motion was for the court to direct the court reporter to record proceedings. Walther listed out things that the reporter would attend. Walther stated situations such as talking in chambers with the attorneys and phone calls.

To conclude, Judge Walther noted that the next Pre-Trial date for Lavaris Jr. would be held Nov. 28 and 9 a.m.