Clerical concern prompts the Texas Court of Criminal Appeals to halt Ruben Gutierrez’s execution

Gutierrez was sentenced to death in the 1998 Brownsville killing of an elderly woman.

Ruben Gutierrez has been fighting to stop his death by requesting DNA testing he claims could prove his innocence in the brutal killing of an elderly woman in Brownsville. But it was a clerical error that prompted the Texas Court of Criminal Appeals on Tuesday to halt his Oct. 30 execution.

The state’s highest criminal court issued a stay after Gutierrez’s attorneys argued his death warrant didn’t have the proper seal from the court when it was delivered to the sheriff and an attorney, invalidating it.

Gutierrez, 42, was sentenced to death in 1999 for the stabbing and beating death of 85-year-old Escolastica Cuellar Harrison during a home robbery. She lived with her nephew in the mobile home park she owned and had about $600,000 in her house at the time of her death, according to court records.

Gutierrez knew Harrison through her nephew. He and two other suspects, Rene Garcia and Pedro Gracia, were accused of planning to rob her. Each person pegged the other two for the murder, though, the records state. Garcia is serving a life sentence for the murder. Gracia was released from jail before his capital murder trial on a $75,000 bond, and he has been wanted for 20 years, according to a court filing.

After Gutierrez’s arrest, he told police he had been waiting in a park as the other two went to rob Harrison; he said he didn’t know they were going to kill her. Days later, he said he had gone into the house with Garcia but that Garcia killed Harrison alone. Since before his trial, he has maintained the last statement was false and that he “assented to it only after detectives threatened to arrest his wife and take away his children,” according to a recent court filing by his lawyers.

A large focus of Gutierrez’s appeals has been on DNA testing. At the time of Harrison’s death, police preserved fingernail scrapings, a hair in her hand and blood stains, but DNA was never tested. Gutierrez has fought for a decade to get the evidence tested, claiming it can prove he was not Harrison’s killer. Cameron County prosecutors have argued that because there may have been multiple killers, tested evidence that didn’t match him still wouldn’t mark him as innocent. So far, the courts have rejected such testing.

A new filing on the matter is pending at the Court of Criminal Appeals, but the court stopped Gutierrez’s execution on a technical question instead.

When the convicting court sets an execution date, Texas law states that the district clerk must issue an execution warrant “under the seal of the court” within 10 days to the county sheriff, who then delivers it to the Texas Department of Criminal Justice. The court must also send copies of the warrant to the attorneys in the case and the state’s Office of Capital and Forensic Writs, a state public defender office.

The warrant sent to the public defender office and the sheriff did not have the seal on it, and was sent 12 days after the execution was set, according to the court briefings. County prosecutors said it is wrong to stop Gutierrez’s execution for the clerical errors because the importance of the law is that notice is given fairly to all parties.

“It was not enacted for there to be a formalistic ceremonial requirement of the affixing of a seal to a piece of paper,” wrote Edward Sandoval, the county’s administrative first assistant district attorney, in a filing last week.

Gutierrez’s lawyers, however, said when it comes to the death penalty, everything must be in order.

“This is about whether the State of Texas may carry out the most solemn and irrevocable act of government without compliance with the statutes that alone authorize the government to take such an act,” wrote Peter Walker and Richard Rogers.

On Oct. 11, the court asked the county to provide the warrants sent before it could make a decision. On Tuesday, just more than a week before Gutierrez was scheduled to die, the court halted the execution “pending further order from this Court.”

Cameron County District Attorney Luis Saenz said Tuesday that his office will wait until the appellate court issues a ruling on the arguments before requesting a new execution date from the district court. Execution dates must be set at least 91 days in advance.

Gutierrez has faced multiple execution dates. In June, his July execution was rescheduled for October based on “a defect in the warrant,” according to his filing. A federal district judge stayed a September 2018 execution date to give Gutierrez’s new attorney more time to investigate his case. His October execution is the 10th stopped in Texas this year, according to the Death Penalty Information Center. It is the fifth stay of execution from the Court of Criminal Appeals. Seven men have been executed in Texas this year, and seven more are scheduled to die through March.

Execution on hold and Inmates’ Lawyer was Barred by Fifth Circuit

Originally Published on; August 29, 2018

A senior federal judge granted a stay of execution for a man condemned to death for killing an elderly woman during a burglary two decades ago.

Ruben Gutierrez, 41, had been scheduled to die on Sept. 12 at 6 p.m. for murdering 85-year-old Escolastica Harrison at the Harrison Mobile Home Park on Morningside Road in Brownsville in 1998.

A Cameron County jury in the 107th state District Court convicted Gutierrez based on evidence that he befriended Harrison so he could rob her of some of the $600,000 in cash that she had hidden in her home. According to police, Harrison didn’t like banks and kept her money in a suitcase in her trailer home. An autopsy showed she had been stabbed 13 times with two different screwdrivers and was also beaten.

Senior U.S. District Judge Hilda Tagle granted the stay of execution on Aug. 22.

“Allowing the execution to proceed, however, would deny Gutierrez any meaningful opportunity to conduct an investigation into the factual and legal basis of potential claims,” Tagle wrote in her order.

New lawyers appointed to represent Gutierrez early this month made the request on Aug. 10, and argue they need more time to learn about Gutierrez and go through the massive case record.

“Through no fault of his own, Mr. Gutierrez is before this Court less than a month before his scheduled execution with counsel who were appointed to his case within the past ten days,” the motion for a stay of execution states.

Gutierrez’s previous attorney said in court documents that she didn’t believe she had the expertise to represent the man at this stage of his litigation, and Tagle’s order notes that the attorney is no longer allowed to practice in the 5th Circuit Court of Appeals because of rude behavior toward court staff.

The motion for stay of execution notes that Gutierrez’s former attorney never disclosed that to him.

The condemned man’s new attorneys mention in their motion for stay of execution that they may prepare civil rights litigation, need time to apply for clemency in an attempt to commute Gutierrez’s death sentence to life without parole, and also need to investigate what kind of efforts Gutierrez’s trial attorneys put into DNA testing crime scene forensic evidence.

Cameron County District Attorney Luis V. Saenz said the stay of execution is regrettable.

“We’re terribly disappointed there was a stay granted,” Saenz said.

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