Jose Angel Gutierrez

Case record: Jose Angel Gutierrez

Status

Jose Angel Gutierrez was executed by lethal injection in Texas on November 18, 1999.

Timeline

• 18 November 1999 — Jose Angel Gutierrez was executed by lethal injection in Texas.
• 17 November 1999 — Texas Attorney General John Cornyn issued a media advisory stating that Jose Angel Gutierrez was scheduled to be executed after 6 p.m. on Thursday, November 18.
• August 27, 1999 — The United States District Court for the Southern District of Texas, Houston Division, denied Jose Gutierrez’s federal petition for writ of habeas corpus.
• 25 June 1999 — Jose Gutierrez filed his federal petition for writ of habeas corpus.
• December 16, 1998 — The Texas Court of Criminal Appeals agreed and denied relief on Jose Gutierrez’s state writ of habeas corpus application.
• 14 October 1996 — Jose Gutierrez filed his application for state writ of habeas corpus in the convicting court.
• 18 January 1994 — The United States Supreme Court denied Gutierrez’s petition for writ of certiorari.
• 31 March 1993 — The Texas Court of Criminal Appeals affirmed Gutierrez’s conviction and sentence.
• 5 May 1994 — The trial court denied Gutierrez’s requests to stay his execution and to appoint counsel to prepare and file an application for writ of habeas corpus in state court.
• 18 May 1994 — The Court of Criminal Appeals denied Gutierrez’s related request for mandamus relief.
• 28 April 1994 — With the assistance of counsel, Gutierrez moved the convicting court to stay his execution and to appoint counsel to assist in preparing and filing an application for writ of habeas corpus in state court.
• 26 May 1994 — The state trial court scheduled Gutierrez’s execution for May 26, 1994.
• 23 August 1995 — The United States District Court for the Southern District of Texas, Houston Division, dismissed Gutierrez’s federal action to allow additional claims to be presented to the state courts before proceeding further in federal court.
• 10 January 1994 — The United States Supreme Court denied Gutierrez’s petition for writ of certiorari.
• 8 August 1989 — Jose Gutierrez began serving a prison sentence in August 1982 and was released in April 1987. (Context included in the case record.)
• 30 August 1989 — Jessie purchased the .22 Intertec pistol and the .32 automatic pistol found in the Houston apartment from a pawn shop in Houston.
• 5 September 1989 — Jose Gutierrez and his brother Jessie entered the Texas Coin Exchange in College Station, Texas, shot and killed Dorothy McNew, and robbed the store.
• 12 September 1989 — A Crimestoppers call to the College Station Police Department implicated Jose and his brother and implicated them as being at Isabel Hernandez’s home on September 5.
• 13 September 1989 — At about 6 a.m., College Station police arrested Jose Gutierrez at Mary Jane Gutierrez’s apartment in Houston.
• 14 September 1989 — Police executed a search warrant on Isabel Hernandez’s house in Bryan and recovered items of jewelry and tags in handwriting of Texas Coin Exchange employees.
• 14 February 1992 — Jose Gutierrez was convicted of capital murder in the 272nd Judicial District Court of Brazos County, Texas.
• February 1992 — Jose Gutierrez was convicted of capital murder in the 272nd Judicial District Court of Brazos County, Texas.
• March 1993 — The Texas Court of Criminal Appeals affirmed Gutierrez’s conviction and sentence.
• 7 December 1982 — The state resumed capital punishment on Dec. 7, 1982. (Included in the case record.)

Background

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.

His prior criminal history included evidence presented at the punishment phase of trial that he 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. At the punishment phase, Henry Alderte testified that in August 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. Henry Alderte also testified that 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 further related a previous incident when Jose became angry with him over a girl and came over to his house with a gun.

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. She testified that he injured their eight-month-old baby by hitting him on the back hard enough to leave bruises. Tina Loy, also Jose’s former wife, testified that 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 became frightened 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.

The case record also stated that there was no evidence of drug or alcohol use connected with the instant capital offense.

The offence

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 and shot and killed Dorothy McNew. The medical examiner testified that Dorothy McNew died from one .22 gunshot wound to the rear portion of her head. Dorothy McNew died after being shot; the record stated that she was conscious, moaning and asking for help during the robbery and died the following day.

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 complied. Jessie, 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.

The brothers warned employees and customers that if they looked up, they would have “their heads blown off.” The occupants 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 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 approximately $500,000 worth of rings, necklaces, loose diamonds, and other jewelry items.

The record also stated that the brothers stole approximately half a million dollars worth of gems and jewelry, about 3/4 of which was recovered when they were arrested a short time later.

Investigation

A Crimestoppers call to the College Station Police Department on September 12 implicated Jose and his brother in the robbery/murder. The information provided 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.

Evidence presented at trial included latent fingerprints and a palm print at the Texas Coin Exchange that 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.

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 also showed 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. 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.

On September 14, 1989, the police executed a search warrant on Isabel Hernandez’s house in Bryan and recovered jewelry items, 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.

Arrest

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 Gutierrez 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 found in a pillowcase), loose diamonds in four small plastic boxes, an orange jewelry box, more necklaces, and a gold medallion worn by Jose. The jewelry items were 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 fired by the .22 pistol, one live .22 round, two pairs of gloves, a ski mask, and a ladies’ stocking.

Witnesses 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 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.

The record stated that 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. The items 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.

Other events immediately after the offence

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 carried 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 local television news, realized that the descriptions given on the report sounded like her brothers. Through the locked door of the back room, she told her brothers about the report and asked them if they were involved. The brothers allowed Isabel to enter the room. Isabel 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 Isabel four gold chains, and Jessie gave Isabel 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.

Isabel told them that the news report described two men with long hair, and 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. During the trip to Houston, Jessie told Isabel, “don't say anything, you're the only one that knows.”

Trial

Jose Gutierrez was convicted of capital murder in February 1992 in the 272nd Judicial District Court of Brazos County, Texas.

Bill Turner, the Brazos County district attorney who prosecuted the brothers, was quoted in the case record as saying:

“It was a senseless killing,” said Bill Turner, the Brazos County district attorney who prosecuted the brothers. “It was just that cold-blooded. “They were in the front of the counter and this woman is a way behind and walking to her office. She was shot in the back of the head. It was just cold-blooded. "I always get a feeling it's such a waste that human beings engage in such conduct.”

The record also included quoted testimony that Jessie kept his weapon aimed at the customer until compliance with Jose’s instructions, and that the brothers warned employees and customers that if they looked up, they would have “their heads blown off.”

Sentencing

At trial, the jury imposed the death penalty. The case record stated that Jose Gutierrez was sentenced to death based on the jury’s affirmative answers to two special issues.

Appeals

Jose Gutierrez appealed his conviction and sentence to the Texas Court of Criminal Appeals. The Texas Court of Criminal Appeals 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.

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 on April 28, 1994. The trial court denied the request on May 5, 1994. 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, to allow 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. Jose Gutierrez filed the application on October 14, 1996 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 and was again appointed counsel by the United States District Court for the Southern District of Texas, Houston Division. Gutierrez 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.

Outcome

Jose Gutierrez was executed by lethal injection in Texas on November 18, 1999.

The case record also described his last statement. Texas Attorney General John Cornyn issued a media advisory on Wednesday, November 17, 1999. It stated:

• the execution was scheduled after 6 p.m. on Thursday, November 18.

The case record included Jose Gutierrez’s last statement, including the recitation:

Mama Isabel told me to tell you hello. Holy, holy, holy! Lord God Almighty! Early in the morning our song shall rise to Thee; Holy, holy, holy, merciful and mighty! God in three Persons, blessed Trinity. Holy, holy, holy! Merciful and mighty. All Thy works shall praise Thy name, in earth, and sky, and sea; Holy, holy, holy, merciful and mighty! God in three Persons, blessed Trinity. Oh, our Father who art in heaven, holy, holy, holy be Thy name. Thy kingdom come, Thy will be done, on earth as it is in heaven. Give us this day our daily bread and forgive us our sin as we forgive our debtors. Lead us not into temptation, but deliver us from evil, for Thine is the kingdom and the power and the glory forever and ever. Now, Father, into Thy hands I commit my spirit. Amen.

Another portion of the case record described his last moments as including singing two verses of the hymn “Holy, Holy, Holy,” reciting the Lord’s Prayer from the gospel according to Matthew, and quoting from Luke 23:46:

Father, into Thy hands I commit my spirit. Amen.

The case record also stated that he was pronounced dead at 6:22 p.m. and that the lethal injection was started after he finished his last statement.

Other details

• Jose Gutierrez was listed as “Jose Angel Gutierrez, 39” and with the identifier “#970.”
• The case record stated that Dorothy McNew was 42.
• The case record stated that Jose Gutierrez was then 28 at the time of the offence on September 5, 1989, and that Jessie was 24 at that time.
• The case record stated that Jose Gutierrez carried a suitcase and a pillowcase when he and Jessie went to Isabel Hernandez’s home.
• The case record stated that 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 record stated that 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.
• Two jail inmates testified about fear after Jose stated he planned to “take someone down with him.”
• The case record stated that there were no witnesses associated with Dorothy McNew’s death.
• The case record stated that Jessie Gutierrez was executed in 1994 for his role in the same crime.
• The case record included the statement that Jose Gutierrez was “the 3rd condemned murderer Texas had executed in as many days,” and that he was the “31st condemned inmate to be executed this year in Texas” and “the 195th overall since the state resumed capital punishment on Dec. 7, 1982.”