Capital murder defendant Simon Lopez can face death penalty, jud - KYTX CBS 19 Tyler Longview News Weather Sports

Russell cited case law in his decision to allow the death penalty if Lopez is convicted. Lopez, 28, is charged with capital murder in the July 2010 death of Emma Torres' 18-month-old son, Jeremy Silva.

Lopez was babysitting Silva and another child while their mother, Emma Torres, who was his girlfriend, was at work, according to the U.S. Marshals Service. He reportedly contacted the boy's aunt and told her he was not breathing. Silva was dropped off with the aunt and then taken to the emergency room, where he was pronounced dead, according to the U.S. Marshal Service.

Doctors also noticed other signs of abuse on the baby's body, including strangulation, broken ribs and severe bruising, according to the U.S. Marshal Service.

U.S. Marshals arrested Lopez in Mexico in July 2011. Autopsy reports showed the baby died from heart damage resulting from blunt force trauma to the chest, according to information from police. The Lopez trial is set for February 2013 in the Smith County 7th District Court and prosecutors are seeking the death penalty for the defendant. Lopez is being held in the Smith County Jail on bonds totaling $3 million.

Defense attorney Rick Hagan argued a week ago to Judge Kerry Russell that Mexican officials should have conducted a hearing with Lopez to decide whether they should extradite his client back to the U.S. in 2011 and that "Mexico is not duty-bound" to extradite anyone for the death penalty. He added that Mexico will not return anyone to a country where they may face the death penalty.

Hagan also argued in a motion that the death penalty is unconstitutional and constitutes "cruel and unusual punishment."

Russell replied last week that usually judges in death penalty states tend not to grant motions that the death penalty is unconstitutional and asked whether anything had changed. Hagan replied nothing had changed constitutionally to prohibit states from assessing the death penalty.

Smith County Assistant District Attorney Cynthia Kent told the judge in her arguments last week that the "U.S. has no authority to determine if a hearing should be held. It's up to authorities in Mexico to have decided that."

Ms. Kent added that the U.S. did not request extradition and that no special assurances were given that the U.S. would not seek the death penalty for Lopez.

"We have a right as a sovereign state to seek the death penalty," she said in court. She argued that Mexico had expelled Lopez and that the defendant is a U.S. citizen.

Ms. Kent also pointed to past case law in which lethal injection was found to be the most humane method of execution.

But Hagan argued that Texas "was not a passive recipient - they (the authorities) actively pursued Mr. Lopez." Hagan also said in court that U.S. Marshals said when they brought Lopez back to the U.S. from Mexico that he had been beaten.

Ms. Kent responded in court that there was "nothing done by the U.S. to abuse Mr. Lopez."

Russell said he makes rulings based on case law, and asked Hagan whether he had any case law to support his arguments on the death penalty.

"I wish there was more case law, judge," Hagan responded.