Texas Attorney General

Wednesday, November 17, 1999

MEDIA ADVISORY

Jose Angel Gutierrez Scheduled to be Executed

AUSTIN - Texas Attorney General John Cornyn offers the following information on Jose Angel Gutierrez who is scheduled to be executed after 6 p.m., Thursday, November 18^th.

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.

PROCEDURAL HISTORY

In February of 1992, Jose Gutierrez was convicted of capital murder in the 272nd Judicial District Court of Brazos County, Texas. Punishment was assessed at death based on the jury's affirmative answers to two special issues submitted.

Gutierrez appealed his conviction and sentence to the Texas Court of Criminal Appeals, which affirmed on March 31, 1993. The United States Supreme Court denied Gutierrez's petition for writ of certiorari on January 10, 1994. Thereafter, the state trial court scheduled Gutierrez's execution for May 26, 1994. On April 28, 1994, Gutierrez, with the assistance of counsel, moved the convicting court to stay his execution and to appoint counsel to assist him in preparing and filing an application for writ of habeas corpus in state court. The trial court denied Gutierrez's requests on May 5, 1994, and the Court of Criminal Appeals denied Gutierrez's related request for mandamus relief on May 18, 1994.

Gutierrez proceeded into federal court. The United States District Court for the Southern District of Texas, Houston Division, granted a stay of execution and the appointment of counsel. After Gutierrez filed a federal petition for writ of habeas corpus and an amended petition, the district court dismissed Gutierrez's federal action on August 23, 1995, in order for Gutierrez to present additional claims to the state courts before proceeding further in federal court.

Gutierrez returned to state court and was appointed counsel to assist him in filing an application for state writ of habeas corpus. On October 14, 1996, Gutierrez filed his application for state writ of habeas corpus in the convicting court. After an evidentiary hearing, the trial court recommended that relief be denied. On December 16, 1998, the Court of Criminal Appeals agreed and denied relief.

Gutierrez returned to federal court where he was again appointed counsel by the United States District Court for the Southern District of Texas, Houston Division. Gutierrez then filed his filed his federal petition for writ of habeas corpus on June 25, 1999. The district court denied relief on August 27, 1999. Gutierrez did not seek further review.

PRIOR CRIMINAL HISTORY

At the punishment phase of trial, the State presented evidence that Jose Gutierrez had previously been convicted of two felony offenses, one for theft in Dallas County for which he received a two-year sentence, and another for aggravated sexual assault in Brazos County in 1982.

Henry Alderte testified that in August of 1989, when Alderte was in Houston with Jose and Jessie at their sister's house, Jessie proposed that Alderte should go into a store and shoot someone in order to prove his honor and become a member of the group. The three later went down to some railroad tracks, where Jose took an Uzi-type gun from a carrying case and he and Jessie shot it at telephone poles and a refrigerator. Alderte also related a previous incident when Jose became angry with him over a girl and came over to his house with a gun.

Prior to the instant offense, Jose told his brother, Marcus Gutierrez, that he would not take an empty gun into a robbery; rather, he would take a loaded gun so that people would know he meant business.

Sally Moreno, Jose's former common-law wife, testified that Jose had once held a knife on her and had locked her in a room for two days without food or water. He had also injured their eight-month-old baby, hitting him on the back hard enough to leave bruises. Tina Loy, also Jose's former wife, testified that on one occasion, during an argument, Jose lunged at her and started choking her, only to be pulled away by his stepmother.

Two jail inmates testified that they had requested to be moved from the cell they shared with Jose where he was incarcerated awaiting trial in the instant case. The men had become frightened of Jose after he stated that if he received the death penalty, he planned to "take someone down with him." Ernie Wentrcek, Jose's juvenile probation officer, testified that Jose's reputation in the community for being peaceful and law abiding was bad.

DRUGS AND/OR ALCOHOL

There was no evidence of drug or alcohol use connected with the instant capital offense.

Jose Gutierrez

Texas Execution Center by David Carson

Txexecutions.org

Jose Angel Gutierrez, 39, was executed by lethal injection on 18 November 1999 in Huntsville, Texas, for murdering a store clerk.

On 5 September 1989, Gutierrez, then 28, and his brother, Jessie, 24, walked into a coin and jewelry store in College Station. Jose went to the counter and was waited on by Dorothy McNew, 42. Jessie remained on the other side of the store. After they had been in the store for about 10 to 15 minutes, Jose Gutierrez drew a .22-caliber semiautomatic pistol and shot McNew in the head. He then turned and instructed the other employees and the other customer in the store to get behind the counter and lie down. Jessie, who was armed with a .32-caliber semiautomatic pistol, began taking jewlery out of the store's glass cases and putting it into bags. They repeatedly threatened to kill anyone in the store who failed to comply with their instructions. They fled the store with jewelry worth approximately $500,000.

McNew was conscious, moaning and asking for help during the robbery. She died the following day.

The pair of robbers went to the home of Isabel Hernandez, their sister. She saw them carrying a suitcase and a pillowcase on their way into a back bedroom. When Isabel heard a news report of the robbery and a description of the robbers, she suspected her brothers and asked them whether they were involved. Jose told her that he shot the clerk. They gave her some gold jewelry in exchange for her promise not to tell anyone what she had seen.

Isabel told them that the news report described two men with long hair, so Jessie then cut Jose's hair. Isabel arranged for a cousin to drive her brothers to Houston, where they were to stay with another sister, Mary Jane Gutierrez.

An anonymous tip led police to look for the robbers at Isabel Hernandez's house. From there, their investigation took them to Houston. Police arrested Jose Gutierrez at Mary Jane's house. He was wearing some of the stolen jewelry. Police recovered numerous stolen jewlery items from the apartment, as well as $1,200 in cash, a .22-caliber semiautomatic pistol, a .32-caliber semiautomatic pistol, gloves, a ski mask, and a woman's stocking. Jessie Gutierrez was arrested at a local motel. He was also in possession of stolen jewelry and more than $2,200 in cash.

Witnesses at the store robbery identified Jose Gutierrez as the shooter. Jessie Gutierrez was placed at the scene by fingerprint evidence. Store employees testified that the sales counters were cleaned several times every day, thereby excluding the possibility that Jessie had left the fingerprints on an earlier visit to the store. Evidence also showed that Jessie had purchased the two pistols. He purchased a box of ammunition on the same day as the robbery.

Jose Gutierrez had a previous conviction for aggravated rape and theft. He began serving his prison sentence in August 1982 and was released in April 1987. At his punishment hearing, a former wife testified that he had once held a knife on her and had injured their 8-month-old baby by beating him. Another former wife testifed that he attempted to choke her once during an argument.

A jury convicted Jose Gutierrez of capital murder in February 1992 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in March 1993. All of his subsequent appeals in state and federal court were denied.

Prosecutors offered Jessie Gutierrez a life sentence, but he turned them down. A jury subsequently convicted him of capital murder and sentenced him to death. He was executed on 16 September 1994.

At his execution, Gutierrez sang two verses of the hymn "Holy, Holy, Holy" while strapped to the gurney. He then recited the Lord's Prayer from the gospel according to Matthew. Finally, quoting from Luke 23:46, he said, "Father, into Thy hands I commit my spirit. Amen." With his last statement finished, the lethal injection was started. He was pronounced dead at 6:22 p.m.