The jury of nine women and three men began deliberations Tuesday afternoon to decide if 32-year-old Facundo Chavez will receive the death penalty or life in prison without parole.
The jury was sequestered about 5 p.m. after being unable to reach a decision on the sentencing. Jurors had been deliberating for about two hours. They will resume their work at 9 a.m. Wednesday.
The same jury on Aug. 3 took less than 30 minutes of deliberations to convict Chavez of capital murder of a peace officer in Herrera's death.
Graphic video sparks controversy in closing arguments
The playing of a video showing Herrera's fatal shooting during the prosecution's closing arguments caused members of the deputy's family to walk out of the courtroom and for defense lawyers to ask for a mistrial.
The video showed Herrera laying in a pool of blood. As the video played, Herrera’s family, friends and coworkers got up crying and left the courtroom.
There was controversy about whether the family was told in advance that the graphic video would be shown.
Judge Diane Navarrete ended closing arguments and sent the jury to deliberate. After the jury left, Navarrete called the prosecution's actions “unprofessional" and said she was taking into advisement the request for a mistrial.
Assistant District Attorney Rick Locke said he had informed the family that the video would be shown.
"This is the biggest moment" of the case, defense attorney Louis Lopez said.
Is Facundo Chavez a danger to society?
Closing arguments in the punishment phase of the trial by the prosecution and the defense hinged on whether Chavez would be a continuous danger to society.
Prosecutors painted Chavez as a dangerous killer who had made no changes to his life and had shown no remorse.
Even if sentenced to life in prison, Chavez would be a danger to guards, doctors and nurses working at the prison and other inmates, Assistant District Attorney Will Dixon told the jury.
In his prosecution closing arguments, Locke said Chavez never displayed remorse.
"He has done nothing …There is nothing there … He doesn’t take any responsibility. Without taking responsibility, he is the same guy you saw in the (shooting) video," Locke said.
"He is not probably a danger to society. He is a danger," Locke said.
Chavez's attorneys countered that Chavez had taken responsibility, including testifying in court.
"From the get go, my client has admitted to shooting Deputy Herrera. He has taken responsibility," Lopez said.
"Obviously, he (Chavez) was a rule breaker. He was a lawbreaker. He was a convicted felon, but all that was shown to you was nonviolent (crimes),” Lopez said.
Chavez has displayed no violence in the four years since his arrest and "the state has failed to prove their burden” that Chavez is a continuing threat to society, Lopez told the jury.
Jurors have heard from dozens of witnesses who testified over 10 days in the capital murder trial, which began on July 26, in Criminal District Court 1 at the Enrique Moreno County Courthouse in Downtown El Paso.
During the sentencing phase of the trial, Assistant District Attorneys Michelle Hill, Dixon and Locke focused their arguments on Chavez's previous criminal history and the devastating impact his actions had on Herrera's family.
Herrera's family testified Friday about the heartbreak and pain they have suffered in losing their husband, son, brother and nephew.
Defense attorneys Lopez, Leonard Morales, Brock Benjamin and Miriam Cruz focused their arguments on the alleged abusive childhood of Chavez.
Chavez's father allegedly beat his mother. Chavez also claimed to have been sexually abused by a relative when he was 6 years old.
Fatal shooting of Deputy Peter Herrera
Herrera pulled over Chavez and his girlfriend, Arlene Piña, about 1:50 a.m. on March 22, 2019, in the 1000 block of Chicken Ranch Road, near Socorro Road in San Elizario.
The traffic stop was due to two traffic violations: failing to dim high-beam headlights and improperly displaying a temporary license plate permit.
The deputy asked Chavez to exit his vehicle. Chavez got out of the car and immediately began shooting at Herrera.
Chavez fired about 15 rounds from a handgun at Herrera at point-blank range, prosecutors said.
The gun then jammed, so Chavez began beating Herrera with the gun. Chavez and Piña then fled the scene. They were later found by U.S. Border Patrol agents hiding in a shed on the property of a nearby house, according to testimony.
Herrera died at a hospital two days later.
Chavez took the stand twice during the trial. He confessed to the crime during his testimony.
"I shot Deputy Herrera. I beat him with a gun," Chavez testified.
Piña was originally charged with capital murder. However, the charge was reduced to manslaughter in a plea deal made with former El Paso District Attorney Yvonne Rosales. Piña is serving a 15-year prison sentence.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."
— Oscar Wilde
but by the punishments that the good have inflicted."
— Oscar Wilde