June 13 (UPI) -- A federal appeals court has vacated a stay of execution for a Texas death row inmate scheduled to die next week.
The 5th U.S. Circuit Court of Appeals said Friday that Ruben Gutierrez has failed to show likelihood of success on his claims, which included a request for new DNA testing.
Gutierrez's lawyer, Shawn Nolan, says he plans to appeal the ruling.
"If DNA evidence exists, as it does here, it should be tested. There is no physical evidence connecting Mr. Gutierrez to this crime. The state should be leading the search for the truth, rather than obstructing it," he said.
Gutierrez, 42, is scheduled to be executed Tuesday for the 1998 murder of trailer park owner Escolastica Harrison.
Texas Attorney General Ken Paxton appealed the case to the 5th Circuit after a lower federal court granted a stay.
U.S. District Court Judge Hilda Tagel granted the stay Tuesday after Gutierrez's lawyers asked to have additional DNA testing conducted in the case. He also challenged a Texas Department of Criminal Justice statute prohibiting all religious or spiritual advisers from entering the execution chamber.
Paxton's office said Gutierrez is unlikely to succeed on either challenge.
"The district court abused its discretion in [granting the stay] because Gutierrez is plainly unlikely to succeed on any of his claims," his office said in court documents.
Texas banned all chaplains of any religion to enter the state's execution chambers in April 2019 after the U.S. Supreme Court stayed the execution of an inmate who was prevented from having a Buddhist spiritual adviser with him.
Under the new protocols, TDCJ chaplains will be available to the inmates until they are transferred to the execution chamber. Ministers and spiritual advisers also may observe executions from the witness rooms.
Paxton's motion said the change in protocol didn't impose a substantial burden on Gutierrez's religious exercise because he'll be allowed to interact with a chaplain in the day leading up to his execution.
Gutierrez has sought the testing of nail scrapings and loose hairs taken from the victim, a shirt belonging to a family member of Harrison and other clothing items. He says the testing would prove his innocence.
Authorities said Gutierrez knew Harrison through her nephew and worked together with accomplices Pedro Garcia and Rene Garcia to rob her of about $600,000 in cash she had stashed in her home. An autopsy showed Harrison had been beaten and stabbed 13 times with two different screwdrivers.
Gutierrez said he helped organized the robbery, but didn't take part in the murder and DNA testing would absolve him.
"For more than two decades on Texas' death row in solitary confinement, Mr. Gutierrez has always maintained that he did not commit this crime. There is no physical or forensic evidence connecting Mr. Gutierrez to the crime," Shawn Nolan said.
"His wrongful conviction was based solely upon two weak elements: a false confession elicited when police threatened to take Mr. Gutierrez's children away and threatened his wife, and an unreliable witness. The witness claimed to have identified Mr. Gutierrez as being in the area of the crime at the time it was committed, but the reliability of this identification has been seriously questioned by expert opinions."
If Gutierrez is executed Tuesday, it'll be the first execution carried out in Texas since the beginning of the coronavirus pandemic. The state has delayed or rescheduled six other executions.