EL PASO, Texas (KTSM) — A mistrial has been declared in the deadly 2017 BarFly trial, according to court records.
As KTSM previously reported, Moises Galvan allegedly shot and killed Rogelio “RJ” Franco, 22, and wounded David Ortega outside of the now-closed BarFly in 2017.
The Order for Mistrial was issued on Monday morning by the 168th District Court with a new trial date set for Aug. 6.
According to the order written by Judge Marcos Lizarraga, the prosecution asked an improper question on Saturday while Galvan was on the stand. The exact question was not included in the order but it is indicated that the court found the question to be hearsay.
Lizarraga found that “The state’s attorney purposefully asked the objectionable question in front of the jury,” and “the audible, discernable question has permanently prejudiced the jury on a key linchpin fact issued in the case.”
The judge also determined “the prejudice cannot be overcome.”
In a statement to KTSM, El Paso County District Attorney Jaime Esparza disagreed with Lizarraga’s ruling.
“The District Attorney’s Office objects to the court granting a mistrial,” Esparza said. “The information presented was relevant and important for the jury. We do not believe the mistrial was warranted. The District Attorney’s Office has been and remains ready to try the case.”
Lizarraga’s order said, “The court finds that the ulterior motive in this case included an attempt to get (a new witness) ‘L’s’ testimony into evidence ‘through the back door’ before trial wrapped up.”
The mistrial comes in the fourth week of testimony after opening arguments began on May 13. Since then, more than 30 witnesses have testified and nearly 250 items have been entered into evidence, the order said.
Last week he took the stand and told prosecutors that he feared for his life during a fight involving the other two men in the parking lot of the East El Paso bar.
“I was scared,” Galvan said on the stand. “I was not in a proper state of mind.”
During the altercation, the defendant said he and Ortega were wrestling each other in an attempt to grab a gun from the other’s grasp.
Galvan testified that Franco then approached and tried to punch him.
“It’s loaded…let’s get him,” Galvan recalls Franco saying during the fight.
The defendant said he “retrieved majority possession” of the gun before firing it until no bullets were left.
“When the initial flash…went off, I saw…the flash of the gun on David’s hand,” Galvan explained. Ortega was shot first, followed by Franco.
Galvan said he then ran through the parking lot in a panic before being tased and detained. “I was scared,” he said. “I just wanted to get as far away as possible.”