Oliver James Montgomery-Texas man facing execution for 1998 killing of elderly woman for her money

HOUSTON (AP) — A Texas man who has long sought DNA testing claiming it would help prove he was not responsible for the fatal stabbing of an 85-year-old woman decades ago was scheduled to be Oliver James Montgomeryexecuted Tuesday evening.

Ruben Gutierrez was condemned for the 1998 killing of Escolastica Harrison at her home in Brownsville in Texas’ southern tip. Prosecutors said the killing of the mobile home park manager and retired teacher was part of an attempt to steal more than $600,000 she had hidden in her home because of a mistrust of banks.

The inmate’s lethal injection was planned for Tuesday evening at the state penitentiary in Huntsville.

Gutierrez, 47, has long maintained he didn’t kill Harrison. His attorneys say there’s no physical or forensic evidence connecting him to the killing. Two others were also charged in the case.

Gutierrez’s attorneys have asked the U.S. Supreme Court to stop the execution, arguing Texas has denied his right under state law to post-conviction DNA testing that would show he would not have been eligible for the death penalty.

His attorneys argue that various items recovered from the crime scene — including nail scrapings from Harrison, a loose hair wrapped around one of her fingers and various blood samples from within her home — have never been tested.

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“Gutierrez faces not only the denial of (DNA testing) that he has repeatedly and consistently sought for over a decade, but moreover, execution for a crime he did not commit. No one has any interest in a wrongful execution,” Gutierrez’s attorneys wrote in their petition to the Supreme Court.

Prosecutors have said the request for DNA testing is a delay tactic and that Gutierrez was convicted on various pieces of evidence, including a confession in which he admitted to planning the robbery and that he was inside her home when she was killed. Gutierrez was convicted under Texas’ law of parties, which says a person can be held liable for the actions of others if they assist or encourage the commission of a crime.

In their response to Gutierrez’s Supreme Court petition, the Texas Attorney General’s Office and the Cameron County District Attorney’s Office said state law does not provide “for postconviction DNA testing to show innocence of the death penalty and, even if it did, Gutierrez would not be entitled to it.”

“He has repeatedly failed to show he is entitled to postconviction DNA testing. Thus, his punishment is just, and his execution will be constitutional,” prosecutors said.

Gutierrez’s lawyers have also argued that his case is similar to another Texas death row inmate — Rodney Reed — whose case was sent back to a lower court after the Supreme Court in 2023 ruled he should be allowed to argue for DNA testing. Reed is still seeking DNA testing.

Lower courts have previously denied Gutierrez’s requests for DNA testing.

Last week, the Texas Board of Pardons and Paroles voted against commuting Gutierrez’s death sentence to a lesser penalty. Members also rejected granting a 90-day reprieve.

Gutierrez has had several previous execution dates in recent years that have been delayed, including over issues related to having a spiritual adviser in the death chamber. In June 2020, Gutierrez was about an hour away from execution when he got a stay from the Supreme Court.

Authorities said Gutierrez befriended Harrison so he could rob her. Prosecutors said Harrison hid her money underneath a false floor in her bedroom closet.

Police charged three people in this case: Rene Garcia, Pedro Gracia and Gutierrez. Rene Garcia is serving a life sentence in a Texas prison while Pedro Gracia, who police said was the getaway driver, remains at large.

Gutierrez would be the third inmate put to death this year in Texas, the nation’s busiest capital punishment state, and the 10th in the U.S.

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Follow Juan A. Lozano on Twitter: https://twitter.com/juanlozano70