Henry Earl Dunn

Case details

Henry Earl Dunn, Jr. was a defendant in a capital murder case involving the abduction, robbery, and shooting of Nicolas West.

The offence

On the evening of Nov. 30, 1993, Nicolas West borrowed a red Nissan truck from his roommate, Lara Heidelburg, but never returned home. Henry Earl Dunn, Jr., Donald Aldrich, and David McMillan kidnapped West from a Montgomery Ward parking lot in Tyler, Texas, and then drove to a clay pit where they fatally shot him.

Dunn later confessed that he, Aldrich, and McMillan decided to find and assault homosexuals at Bergfield Park in Tyler, a known meeting place for homosexuals. Aldrich approached a red Nissan truck occupied by West and posed as a homosexual in order to gain West’s attention. West invited Aldrich to join him and the two drove together to a nearby Montgomery Ward parking lot. Dunn and McMillan followed in another car.

Once there, the men brandished weapons and forced West at gunpoint into the passenger seat of their car. While Aldrich drove the red Nissan truck, Dunn held a gun on West and McMillan drove the car to a clay pit approximately 10 miles outside of Tyler. Once they arrived, Dunn, Aldrich, and McMillan led West at gunpoint away from the road and into the clay pit.

Dunn struck West in the head, knocking him to the ground. Dunn fired his pistol into the air, triggering a fusillade of gunfire from Aldrich and McMillan. West was knocked face down into the mud. Dunn then walked toward West’s body and fired at least four and as many as six shots into West. Dunn admitted that one of his shots probably struck West in the head. West was shot as many as 15 times.

West writhed on the ground and begged for the shooting to stop while the three men ran back to the road where the vehicles were parked. Aldrich drove West’s truck and McMillan and Dunn fled in the car.

Two days later, on Dec. 2, dirt-bikers Eddie Craft and Charles Hall found West’s body lying face-down in the clay pit. Two days after the body discovery, the following day Dunn was arrested driving his vehicle. In custody, Dunn gave a videotaped confession detailing the facts above.

West was targeted because he was gay and the murder was classified as a hate crime. Evidence presented at trial included that Dunn used a .357-caliber Magnum and matching bullets were found in the victim’s body, including one in his head.

Investigation and arrest

Dunn was arrested in possession of the red Nissan pickup. He was arrested driving West’s truck. He gave a videotaped confession on Dec. 3.

In the custody phase described in Dunn’s own statements, he was arrested Dec. 3, 1993, by Smith County Sheriff officers and was told he had an arrest warrant for aggravated robbery. He was taken to the Smith County Police Department where he was interviewed by Smith County Sheriffs and FBI agents. After the interview, he was taken to the Smith County Jail and charged with both Capitol Murder and Aggravated Robbery.

Authorities arrested Donald Aldrich, David Ray McMillan, and Dunn for the murder of Nicolas West; authorities acting on an informer's tip arrested Donald Aldrich and also identified David Ray McMillan and Henry Dunn, Jr. later mentioned that West was targeted because he was a homosexual.

Trial

On Dec. 16, 1993, a grand jury indicted Dunn in the 241st Judicial District Court of Smith County, Texas, for the capital offense of murdering Nicolas West while in the course of committing kidnapping and robbery.

On Aug. 28, 1995, a jury found Dunn guilty of capital murder.

Following a separate punishment hearing on Sept. 7, 1995, the court assessed a sentence of death.

In Dunn’s confession description, the act of firing into the air triggered gunfire from Aldrich and McMillan, and Dunn then fired at West’s body.

Sentencing

On Sept. 7, 1995, following the punishment hearing, Dunn was sentenced to death.

Dunn’s accomplices were sentenced as follows:

• Donald Aldrich was convicted of Murder and sentenced to death for the same capital murder.
• David McMillan received a life sentence.

Dunn’s case summary recorded additional sentencing details: McMillan received a life sentence for aggravated robbery and kidnaping.

Appeals

Dunn’s conviction and sentence were affirmed by the Texas Court of Criminal Appeals in a published opinion on Sept. 17, 1997. The citations given included Dunn v. State, 951 S.W.2d 478 (Tex.Crim.App. 1997).

Dunn filed an application for writ of habeas corpus in the trial court on May 26, 1998. On Sept. 15, 1999, the Court of Criminal Appeals denied habeas relief in an unpublished order.

Dunn filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Texas, Beaumont Division, on Jan. 27, 2000. On June 28, 2001, the federal district court denied habeas relief.

Dunn filed an untimely notice for appeal eight days past the 30-day deadline on July 31, 2001. On Sept. 4, 2001, Dunn filed an untimely Motion for Leave to File Out of Time Notice of Appeal, and the district court denied this motion as untimely on Sept. 24, 2001.

On Nov. 20, 2001, the Fifth Circuit U.S. Court of Appeals dismissed Dunn’s appeal for lack of jurisdiction.

On Jan. 3, 2002, Dunn asked the district court to vacate and reenter its earlier judgment so he would receive a new 30-day period for filing a notice of appeal. On Feb. 12, 2002, the district court declined to vacate and reenter its judgment.

On March 18, 2002, the district court denied permission to appeal.

On April 23, 2002, Dunn requested permission to appeal from the Fifth Circuit. On May 13, 2002, Dunn’s scheduled May 14 execution was stayed by the Fifth Circuit pending appeal.

On Aug. 15, 2002, the Fifth Circuit denied Dunn’s appeal and vacated the stay of execution.

On Nov. 12, 2002, Dunn filed a petition for writ of certiorari in the United States Supreme Court, which was pending.

Execution

Henry Earl Dunn Jr. was scheduled to be executed after 6 p.m. on Thursday, Feb. 6, 2003.

Dunn was pronounced dead at 6:15 p.m. following lethal injection.

During the lethal injection process, the lethal dose began at 6:09 p.m., and he was pronounced dead seven minutes later.

Dunn’s final statement to family and the West family included:

"To all my family and friends, I want you to know that I love you very much. I appreciate all the good and bad times together. I'll always remember you, and love you forever. And to the West family, I hope you can find it in your heart to find forgiveness and strength, to move on and find peace."

In a written statement released after his death, Dunn condemned the Texas justice system and called for a moratorium on executions. He wrote:

"When the officials of any state, such as the state of Texas, has so much confidence in their justice system, mistakes will be made, and innocent people will be executed,"
"Texas has executed innocent people, and tonight, Texas has shown just how broke and unfair its system is."

In another written statement, released after his execution, Dunn wrote:

"The victim of this case is not forgotten ... Nicolas West is not forgotten, and never will he be forgotten."

Timeline

• Nov. 30, 1993 — Nicolas West kidnapped from a Montgomery Ward parking lot in Tyler, Texas; taken to a clay pit and shot fatally.
• Dec. 2, 1993 — Dirt-bikers Eddie Craft and Charles Hall found West’s body lying face-down in the clay pit.
• Dec. 3, 1993 — Dunn was arrested driving West’s truck and gave a videotaped confession.
• Dec. 16, 1993 — A grand jury indicted Dunn in Smith County, Texas, for the capital offense of murdering Nicolas West while committing kidnapping and robbery.
• Aug. 28, 1995 — A jury found Dunn guilty of capital murder.
• Sept. 7, 1995 — Dunn was sentenced to death after a separate punishment hearing.
• Sept. 17, 1997 — Dunn’s conviction and sentence were affirmed by the Texas Court of Criminal Appeals.
• May 26, 1998 — Dunn filed an application for writ of habeas corpus in the trial court.
• Sept. 15, 1999 — The Court of Criminal Appeals denied habeas relief.
• Jan. 27, 2000 — Dunn filed a petition for writ of habeas corpus in the U.S. District Court for the Eastern District of Texas, Beaumont Division.
• June 28, 2001 — The federal district court denied habeas relief.
• July 31, 2001 — Dunn’s federal habeas counsel filed an untimely notice of appeal.
• Sept. 4, 2001 — Dunn filed an untimely motion for leave to file an out-of-time notice of appeal.
• Sept. 24, 2001 — The district court denied the motion as untimely.
• Nov. 20, 2001 — The Fifth Circuit dismissed Dunn’s appeal for lack of jurisdiction.
• Jan. 3, 2002 — Dunn asked the district court to vacate and reenter its earlier judgment to allow a new period to file a notice of appeal.
• Feb. 12, 2002 — The district court declined to vacate and reenter its judgment.
• May 14, 2002 — Dunn’s scheduled execution was stayed pending appeal.
• May 13, 2002 — The Fifth Circuit stayed Dunn’s scheduled execution.
• Aug. 15, 2002 — The Fifth Circuit denied Dunn’s appeal and vacated the stay of execution.
• Nov. 12, 2002 — Dunn filed a petition for writ of certiorari in the U.S. Supreme Court.
• Feb. 6, 2003 — Dunn was executed by lethal injection in Texas; lethal dose began at 6:09 p.m. and he was pronounced dead at 6:15 p.m.

Other details

Victim and accomplices

• Victim: Nicolas West, age 23.
• Roommate of Nicolas West: Lara Heidelburg.
• Accomplice: Donald Aldrich (described as accomplice; sentenced to death).
• Accomplice: David Ray McMillan (described as accomplice; received life sentence).

Prior criminal history asserted in case material

Dunn previously assaulted a girl after exiting a school bus; he choked her and repeatedly struck her in the throat before the bus driver stopped the attack, smashed the windows out of the bus door, and attempted to follow the girl back onto the bus before the driver subdued him. Dunn also participated in aggravated robberies of Jesus Godines and Kem Bishop on two other occasions; in each incident, Dunn and others stole the victims’ vehicles at gunpoint. Dunn was arrested but charges were dropped.

Final meal

Dunn’s final meal included: cheeseburger with extra cheese, pickles, onion, lettuce and salad dressing; tray of french fries; ketchup; 25 fried shrimp; 4 cans of pineapple juice; 2 banana splits with a bottle of Hershey's syrup; and one jar of apple butter jam.

Hate-crime classification and comments attributed to Dunn and others

The murder drew national attention with mass demonstrations by gay rights groups at the park where West was abducted.

Dunn denied targeting West because of his sexual preference and refused to take responsibility for West’s murder in statements including:

"I didn't even know him,"
"I didn't pick him up. I'm sad it happened but I still don't think I'm responsible for the actual shot that killed him. I never got that close. Nicolas West was still alive at the time we left."

Dunn also stated, in a death-row interview in 2002:

"I didn't pick him up. I'm sad it happened, but I still don't think I'm responsible for the actual shot that killed him - I never got that close,"
"Nicholus West was still alive at the time we left."

In an interview the day before his execution, Dunn further distanced himself from the crime:

"I didn't kidnap Nick West. Donald Aldrich did,"
"He was already kidnapped, I guess you could say, when we [Dunn and McMillian] showed up."

Dunn denied that West was murdered because he was homosexual:

"I don't hate homosexuals,"
"That's their right to be that way if they want to."

In a description attributed to Smith County District Attorney Jack Skeen, the perpetration of the crime was characterized as:

"It was a deliberate, preplanned, cold-blooded kidnapping and murder,"
"This wasn't an isolated incident by them in these types of attacks but the violence stepped up in this one and went all the way to kidnaping and murder."

Smith County District Attorney Jack Skeen stated that the men were members of a group called the "CB gang" because they became acquainted over citizen's band (CB) radios.

Dates and procedural references within appellate material

The appellate material included references to Dunn v. State, 951 S.W.2d 478 (Tex.Crim.App. 1997) and to proceedings in the U.S. Court of Appeals for the Fifth Circuit that affirmed denial of a Rule 60(b) motion, found that the district court correctly denied the motion, and vacated the stay of execution previously entered.