FACTS OF THE CRIME

On September 5, 1989, at approximately 10:00 a.m., Jose Gutierrez and his brother Jessie entered the Texas Coin Exchange, a jewelry store in College Station, Texas. Jose was waited on by sales clerk Dorothy McNew, and Jessie remained on the other side of the store looking around. After they had been in the store for about ten or fifteen minutes, Jose pulled an Intertec .22 semi-automatic handgun, apparently without warning or provocation, and shot and killed Dorothy McNew. The medical examiner later testified at trial that Dorothy McNew died from one .22 gunshot wound to the rear portion of her head.

Immediately after McNew fell, Jose pointed the gun toward the other employees and the customer in the store and instructed them to get behind the counter and lie face-down on the carpet. The employees and customer did as they were told. Jessie, now armed with a .32 semi-automatic pistol, opened jewelry cases and began raking jewelry out into bags.

A few minutes later, another customer entered the store. Jose met the customer at the door and pointed a "semi-automatic handgun" at him. Jessie then appeared beside Jose and pointed an "Uzi" at the customer. Jose told the customer to get behind the counter and lie face down with his nose in the carpet. Jessie kept his weapon aimed at the customer until the customer complied with Jose's instructions.

The brothers warned the employees and customers that if they looked up, they would have "their heads blown off." The occupants of the store related that all they heard was the sound of jewelry being raked out of the cases, threats to "shoot them in the head, they won't see tomorrow morning," and the repeated moaning and cries of McNew. Neither Jose nor Jessie ever made an effort to check into McNew's condition or assist her in any way.

Before they fled, Jessie pulled the telephone cord out of the wall. When Jose was confronted with a hidden lock release button on the door that delayed his exit, he stated, "I'll shoot you." if the button caused an alarm. Jose and Jessie then exited the store, taking with them approximately $500,000 worth of rings, necklaces, loose diamonds, and other jewelry items.

Jose and Jessie went directly to the home of their sister Isabel Hernandez in nearby Bryan, Texas, where they had stayed the night before. Jose was carrying a suitcase and a pillowcase. Jose and Jessie went to a back bedroom and closed the door, refusing to tell Isabel what they had. Isabel, upon hearing a report of the robbery/murder on the local television news, realized that the descriptions given on the report sounded like her brothers.

Through the locked door of the back room where they were, she told her brothers about the report and asked them if they were involved. The two then allowed Isabel to enter the room, where she saw jewelry scattered all over the bed and a basket half-filled with gold rings. Jose told Isabel that he had shot McNew as she ran for the door, "like trying to push an alarm." Jose gave her four gold chains and Jessie gave her a ring in return for her promise not to say anything about what she had seen.

Isabel cooperated with her brothers and arranged for a cousin to drive them to Houston. After Isabel told them that the news report had included a description of two men with long hair, Jessie cut Jose's hair before they left for Houston. The brothers carried the suitcase and pillowcase with them to Houston. On the afternoon of September 5, Isabel rode with them to the apartment of another sister, Mary Jane Gutierrez, in Houston. Jessie told Isabel during the trip to Houston, "don't say anything, you're the only one that knows."

A Crimestoppers call to the College Station Police Department on September 12 implicated Jose and his brother in the robbery/murder, providing information that they were at Isabel Hernandez's home on September 5, 1989, in possession of gold jewelry and a "black jewelry tray" that the informant had been told came from the Texas Coin Exchange robbery. Further investigation indicated that Jose and Jessie had left Bryan and were now staying with their sister in Houston.

At about 6 a.m. on September 13, 1989, in the company of Houston police officers, College Station police arrested Jose Gutierrez at Mary Jane Gutierrez's apartment in Houston. Jose was arrested wearing stolen jewelry from the Texas Coin Exchange and possessing more than $1,200 in cash. The police recovered numerous jewelry items from the Houston apartment including rings and ring displays, a gray felt-covered display board, gold necklaces, some of which were found in a pillowcase, some loose diamonds in four small plastic boxes, an orange jewelry box, more necklaces, and a gold medallion worn by Jose.

The jewelry items were all identified as stolen from the Texas Coin Exchange. The police also recovered a .32-caliber handgun, a .22-caliber Intertec handgun, a box of ammunition for each weapon, a cartridge case which had been fired by the .22 pistol and one live .22 round, two pairs of gloves, a ski mask, and a ladies' stocking.

Persons at the Houston apartment told the police that Jessie had left the apartment with his girlfriend at about midnight and gone to the Tropicana Motel in Houston. They also indicated that Jessie was in possession of jewelry taken in the robbery and that Jose and Jessie were planning to leave for California that day. In fact, Jose and Jessie had bought a car after Labor Day, and except for the car's malfunction, Jose and Jessie would have left for California before the search and arrest at the Houston apartment.

The police arrested Jessie at the Tropicana Motel where they found him in possession of several items of gold jewelry and a small leather pouch full of loose diamonds that came from the Texas Coin Exchange robbery. The police also recovered, from Jessie's girlfriend who was also at the motel, two gold necklaces, a gold and diamond bracelet, and three gold rings with diamonds and birth stones which Jessie had given her after he returned from College Station on September 5, all of which were identified as coming from the Texas Coin Exchange. Jessie's wallet, found at the scene, contained more than $2,200 cash and a sales slip in Jessie's name showing the purchase of the two weapons recovered at the Houston apartment.

On September 14, 1989, the police executed a search warrant on Isabel Hernandez's house in Bryan and recovered several items of jewelry, a teakwood jewelry box, and jewelry tags in the handwriting of Texas Coin Exchange employees. The police also recovered shower curtain rings which had been used by the Texas Coin Exchange to display gold chains.

Two Texas Coin Exchange employees and a customer identified Jose as the shooter but were unable to identify Jessie as the non-shooter. Latent fingerprints and a palm print at the Texas Coin Exchange, however, positively matched Jessie's prints.

Evidence also revealed that Jessie had purchased the .22 Intertec pistol and the .32 automatic pistol found in the Houston apartment from a pawn shop in Houston on August 30, 1989. Jessie had also purchased a box of .22 shells the same day. The State's ballistics experts testified that the bullet removed from Dorothy McNew's head was fired from the .22 pistol seized at the Houston apartment and came from a box of ammunition seized at the Houston apartment. The .32 pistol seized at the Houston apartment was identified as being similar to the weapon used by Jessie during the robbery.

Evidence was also presented reflecting that Jessie had been to the Texas Coin Exchange on at least one occasion prior to September 5, 1989. Jessie's girlfriend testified that she and Jessie went into the store for fifteen minutes "looking at the jewelry" on the Friday before the Tuesday of the robbery. The State removed the possibility that Jessie's prints found on the day of the robbery were left on this occasion by evidence that the sales counters were wiped clean of fingerprints and "smudges" several times each day. In fact, the counters had been cleaned a minimum of four times and probably as many as ten to twelve times between the Friday Jessie came into the jewelry store with his girlfriend and the Tuesday the jewelry store was robbed.