Clerical concern prompts halt of Brownsville killer’s execution

Death row inmate Ruben Gutierrez. Via the Texas Department of Criminal Justice

By Jolie McCullough, Texas Tribune

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.