A grand jury declined to indict a Texas man 2 years ago in the killing of a 9-year-old. He’s now been indicted for murder

A 33-year-old Texas man was indicted Tuesday on a murder charge in the February 2022 killing of 9-year-old Arlene Alvarez – nearly two years after another grand jury had declined to indict him in connection with the child’s fatal shooting.

Tony Earls Jr. was released after a Harris County grand jury declined to indict him for aggravated assault in July 2022. But the case was brought before another grand jury this year after District Attorney Kim Ogg assigned a special prosecutor to re-examine it.

Earls was at a bank on the night of February 14, 2022, when he was robbed at gunpoint, the district attorney’s office said in a news release. While the robber ran away, Earls took out a gun and began firing at the suspect, the office said.

As Earls began shooting, the Alvarez family drove past the bank – with Arlene in the back seat – and he fired several shots into their pickup truck, fatally striking the young girl, the district attorney’s office said. Arlene’s parents previously told CNN affiliate KHOU they were on their way to a Houston restaurant for a Valentine’s Day dinner when their daughter was shot in the head.

Arlene, who was in fourth grade, took care of her younger siblings – who were also in the vehicle at the time of the shooting, her parents’ attorney said – and “got along with everyone.”

Earls previously said he began shooting because he heard gunshots when the robber started to run away, and believed he was being shot at, according to prosecutors. He allegedly was unaware someone had been hit by his gunfire and he left the scene to call police and report the robbery, according to KHOU.

He was arrested and charged but was released after the grand jury declined to indict him.

Special prosecutor Warren Diepraam, who took on the case, said an FBI firearms expert was brought in to examine the evidence.

“The expert’s opinion is that Mr. Earls saw the robber run past the vehicle with Arlene Alvarez inside — the vehicle did not do anything to give Mr. Earls a justification to shoot into the passing vehicle,” Diepraam said in a Wednesday statement.

Houston police are still working to identify and arrest the armed person who robbed Earls, he added.

CNN has reached out to Earls’ attorneys for comment. If convicted, he faces five years to life in prison, the district attorney’s office said.

“We have a duty to see that justice is done, and that meant asking a new grand jury to look at new evidence,” Ogg, the district attorney, said in a statement. “We have done everything possible to figure out exactly what happened that day to ensure that we get justice.”

CNN’s Andy Rose contributed to this report.

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