EL PASO, Texas (KTSM) – A 20-year-old Juárez resident faces a capital murder charge and may face the death penalty after a grand jury passed a new indictment in his case nearly two weeks before a jury trial.

Ivan Gabaldon is accused of killing Juan Garcia Flores, 63, in February when the two initially met for an alleged paid sexual encounter. Gabaldon’s attorneys claim he was defending himself when Garcia allegedly began doing sexual acts to Gabaldon that he did not consent to.

Gabaldon told police Garcia allegedly threatened him with a knife but he was able to turn the knife on Garcia and stabbed him several times and fled.

Later, he was jailed in the El Paso County Detention Facility on a $1 million bond on a felony murder charge. The District Attorney’s Office sought a capital murder charge from a grand jury on Thursday.

The grand jury passed the charge and the DA’s office asked for more time to review the case shortly after. The difference between a capital murder and murder charge is the possibility of the death penalty.

It’s been over eight months since the incident, and, on Friday, the 210th District Court decided whether the DA’s office would get more time to review the case. Prosecutors say they need more time also to locate witnesses and receive evidence from a lab.

Ivan Gabaldon listens to Friday’s hearing from the El Paso County Jail Annex. / Courtesy of YouTube.

But District Court Judge Alyssa Perez denied the DA’s office more time. Seven prosecutors have been in charge of the case for the DA’s office since it was first filed.

“The point is, if we were in this position, meaning on the eve of trial, and the state had been diligent about handling this case, then I could put that into context,” District Judge Alyssa Perez said. “And, give you a little more consideration on your request for continuance. The problem is that is not what has happened here. This case literally went nowhere within your office. It was treated like a hot potato. Just got kind of bounced over here, bounced over there.”

On Tuesday, the DA’s office offered to let Gabaldon out of jail on a personal recognizance bond when prosecutors originally asked the court to allow for more time in the case. But when defense attorneys for Gabaldon and Judge Perez signaled they would not support the request, prosecutor Curtis Cox announced his office would seek a capital murder charge for Gabaldon and consider the death penalty for him.

Prosecutors did not say definitively if they will pursue the death penalty for Gabaldon. The state has until Nov. 29 to decide whether it will pursue the death penalty in Gabaldon’s case.

Gabaldon’s attorneys once again criticized the DA’s office’s handling of the case and for asking for more time to review the case.

Denise Butterworth, a defense attorney for Gabaldon, said for prosecutors to seek a capital murder charge, means they believe an individual is dangerous to the community and shouldn’t be released. The state must prove with enough evidence to prove the individual is a danger under the Texas government code, Butterworth added.

“That will be their burden, to a jury, to prove that without a reasonable doubt that life in prison is not sufficient for the safety of our community,” she said. “And, that he must be killed in order to protect society from the future danger that they would be alleging that he is.”

Butterworth said the DA’s office shouldn’t need time to know whether Gabaldon is such a danger to the community.

“The enormous power that the state of Texas has right now isn’t being respected or honored,” she said. “The state has shown even less respect for the power they possess. That during a last ditch effort to buy more time after they were exposed for not being prepared for the current jury trial setting, without any process or procedure in place, a rogue prosecutor can unilaterally threaten the death penalty.”

Robert S. Ferguson said the DA’s Office will need time to consider whether to pursue the death penalty under the capital murder charge. And, acknowledged that previous prosecutors had not sought the correct indictment for Gabaldon.

He argued that previous prosecutors had handled the case and had not notified their predecessors that the case was not prepared.

“When it came to our attention, what the facts of this case was, the immediate thought was ‘well, we should reindict because this is a horrible crime,” Ferguson said. “In fact, I have no doubt that we can bare the burden of proof and prove everything that is required to get the death penalty.”

Ferguson said the case should have been indicted as capital murder from the beginning. And, District Attorney Yvonne Rosales should have been updated about the case earlier, he added.

“This is a decision that is weighty. I think justice absolutely supports us seeking the death penalty. Of course, the death penalty, as the court knows, is not an easy decision to make,” Ferguson said. “We hate to make it hasty and we are asking for at least 30 days in order to look at it and decide. And, for Ms. Rosales to look at it.”

Omar Carmona was critical of Ferguson’s remarks and the stance of the DA’s office in the case.

“Us as lawyers, in this great state, should not be offended by the word death penalty,” Carmona said. “But we should be offended by the words used after the death penalty ‘If it becomes necessary.’ That, your honor, is a threat.”

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