Office of the Attorney General News Release Archive


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 18th.

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.

SCHEDULED EXECUTIONS

12/08/1999 David Martin Long (Dallas County)
12/09/1999 James Lee Beathard (Trinity County)
12/14/1999 Robert Ronald Atworth (Dallas County)
12/15/1999 Sammie Felder (Harris County)
01/12/2000 Earl Carl Heiselbetz, Jr. (Sabine County)
01/13/2000 Johnny Paul Penry (Polk County)
01/18/2000 Spencer Corey Goodman (Fort Bend County)
01/20/2000 David Hicks (Freestone County)
01/25/2000 Glen Charles McGinnis (Montgomery County)
01/26/2000 Anzel Jones (Lamar County)
01/27/2000 James Walter Moreland (Henderson County)
02/24/2000 Toronto M. Patterson (Dallas County)

MISCELLANEOUS

If this execution is carried out, and if Desmond Jennings and John Michael Lamb are executed on November 16, 1999, and November 17, 1999, respectively, it will be the 195th execution since executions resumed in Texas in December 1982 and the 31st since General Cornyn took office.

This case was handled by Assistant Attorney General Gena Bunn, Division Chief of the Attorney General's Capital Litigation Division.

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Contact Ted Delisi, Heather Browne, or Tom Kelley at (512) 463-2050