Citations:
Hernandez v. Johnson, 213 F3d 243 (5th Cir. 2000).

Internet Sources:

Texas Department of Criminal Justice

Texas Attorney General

Wednesday, February 7, 2001 - MEDIA ADVISORY - Hernandez Scheduled To Be Executed

AUSTIN - Texas Attorney General John Cornyn offers the following information on Adolph Gil Hernandez who is scheduled to be executed after 6 p.m. on Thursday, February 8th: On January 31, 1990, Hernandez was convicted of murdering Elizabeth Alvarado in Slaton, Texas, during the course of a robbery. A summary of the evidence presented at trial follows:

On the evening of September 30, 1988, Hernandez and his friend Mike Martinez went to the home of Margarita Davila in Slaton, Texas, with an eight-pack of beer. The three drank the beer, and Hernandez played baseball with Davila's young son. At about 7:30 p.m., Hernandez and Martinez left Davila's home to buy more beer. As he was leaving, Hernandez picked up the baseball bat. Davila told him not to take the bat, but he did so anyway. Davila and Martinez both testified that when Hernandez left Davila's home, he was not drunk.Hernandez purchased a six-pack of beer, and he and Martinez went to the home of Kenneth Hodges, where they shared the six-pack with Hodges and another individual. Eventually, Hernandez and Martinez left Hodges' home. Hernandez and Martinez walked together for a short time, then split up. Martinez testified that when the two parted company Hernandez was not drunk.

At about 9 p.m., Hernandez arrived at the home of a young boy who lived with his grandmother near Elizabeth Alvarado's residence. Upon hearing a knock at the front door, the boy looked out the window to see who was there. Unable to see who it was, the boy opened the door. He then recognized Hernandez and asked him what he wanted. Hernandez swung the baseball bat at the boy, who was able to deflect the blow by closing the screen door. Hernandez ran off in the general direction of the home of Elizabeth Alvarado, the victim. On cross-examination, the boy stated that he did not smell alcohol on Hernandez at the time of this attack.

Josie Vargas, Alvarado's adult daughter, arrived at Alvarado's home shortly thereafter. Vargas was accompanied by her nephew. As they drove into the driveway, Vargas and her nephew saw Hernandez emerge from the kitchen door with Alvarado's purse and a baseball bat. Vargas immediately recognized Hernandez as she had known him almost her entire life. Hernandez ran back inside the house and came out the front door, approaching Vargas asking if she was alone. (Vargas had exited her car while her nephew remained in the car.) Hernandez then raised the bloody bat over his head as if he intended to hit her. Vargas grabbed the bat, and they struggled over control of it. Vargas wrestled the bat away from Hernandez, and Hernandez ran off with Alvarado's purse. Vargas hit Hernandez three times with the bat as he fled. The bat that Vargas recovered from Hernandez was identified by Davila's son as his.

Vargas and her nephew entered Alvarado's house where they found her beaten beyond recognition. Alvarado may have been still alive at this point because both Vargas and her nephew testified that Alvarado was making gurgling noises as they waited for the emergency medical personnel to arrive. Although medical technicians attempted to initiate life support procedures, Alvarado was declared dead upon arrival at Lubbock General Hospital. An autopsy revealed that Alvarado was killed by being hit about the head with a blunt object. Alvarado had lacerations on her head and a broken nose, as well as a depressed skull fracture. Alvarado sustained eight blows to the head and suffered a massive subdural hemorrhage. Additionally, both bones in Alvarado's right wrist were broken by impact from a blunt instrument. The pathologist who performed the autopsy testified that injuries as intense as those sustained by Alvarado must have been inflicted by blunt force and were consistent with use of a baseball bat. Alvarado was 69 years old at the time of her murder.

Not more than an hour after Alvarado was found beaten to death, authorities found Hernandez and apprehended him. Hernandez did not have the black baseball cap he had been seen wearing earlier in the evening as well as during his encounter with Vargas, nor did he have the victim's purse. While attempting to retrace Hernandez' movements from the murder scene, Slaton police officers discovered a black baseball cap and Alvarado's blood-spattered purse, wallet, and money discarded at a location near her home. Tennis shoes worn by Hernandez at the time of arrest were consistent with a shoe print where these articles were discovered.

At trial, Hernandez did not contest being guilty of murder. Rather, Hernandez' counsel argued that it was a "drunken murder" not a capital murder. Hernandez' counsel made the following remarks during closing argument: " . . . the issue here is not one of innocence. . . . The question is not murder - or innocence. The question is, is it murder or is it capital murder. . . . The question of murder versus capital murder. The question of robbery versus theft. Those are the things that you have to look at because innocence is not an issue here. . . .This was a drunken murder. . . .We want a true verdict. And based on the evidence and not on the number of witnesses . . . that verdict is guilty of murder. And we would ask you . . . to return a true verdict in this case of murder."

During subsequent appeals, including up through the conclusion of his U.S. Supreme Court proceeding on Oct. 30, 2000, Hernandez argued that because he remembered nothing about the offense he was in an "alcoholic blackout" at the time of the murder, and therefore, he was actually innocent of capital murder because he could not have intentionally committed the murder. In a motion filed this week, Hernandez claimed he now remembers what happened. According to Hernandez' latest version, he was simply a bystander and a "black male" whose name he does not know actually committed the offense. Hernandez has offered no explanation regarding his encounter with Vargas as he was leaving her mother's house with the baseball bat and her mother's blood-spattered purse.

At the punishment phase of trial, the state presented evidence that Hernandez had been convicted and sentenced to prison for five prior felony convictions: three convictions for burglary and two convictions for unauthorized use of a motor vehicle. Many witnesses testified to acts of violence, or threats of violence, committed by Hernandez in and out of prison, including while waiting trial for the instant capital murder. Hernandez' parole officer and several officers of various local law enforcement agencies testified that Hernandez did not have a reputation in the community for being a peaceful and law-abiding citizen.

PROCEDURAL TIME-LINE

November 10, 1988 - Hernandez was indicted with the offense of murdering Elizabeth Alvarado in the course of committing a robbery.

January 31, 1990 - A jury found Hernandez guilty of the capital offense. A separate punishment hearing ensued.

February 5, 1990 - The jury returned a verdict on the special issues, resulting in the trial court (the 140th District Court of Lubbock County) assessing punishment as death. Appeal was automatic to the Court of Criminal Appeals.

June 29, 1994 - The Court of Criminal Appeals affirmed the conviction and sentence.

April 24, 1995 - The U.S. Supreme Court denied a petition for writ of certiorari.

November 7, 1995 - Hernandez filed a petition for federal habeas relief in the U.S. District Court for the Northern District of Texas, Lubbock Division.

January 16, 1996 - The federal district court dismissed the petition so that Hernandez could pursue relief in state court.

April 2, 1997 - Hernandez filed an application for state writ of habeas corpus with the state court of conviction. Thereafter, the state court recommended that relief be denied.

November 18, 1998 - The Court of Criminal Appeals adopted the trial court's findings and denied habeas relief.

December 21, 1998 - Hernandez filed a petition for federal habeas relief in the federal district court in Lubbock.

March 18, 1999 - The federal district court denied relief.

April 23, 1999 - The federal district court denied Hernandez permission to appeal.

May 30, 2000 - The U.S. Court of Appeals for the Fifth Circuit denied Hernandez permission to appeal.

October 30, 2000 - The U.S. Supreme Court denied Hernandez' petition for writ of certiorari.

February 2, 2001- Hernandez filed a request for stay of execution in order to pursue further testing of evidence in the state court of conviction.

February 6, 2001- The state trial court declined to modify the execution date and forwarded the matter to the Court of Criminal Appeals.

Texas Execution Information Center by David Carson.

In September 1988, Hernandez, then 38, broke into the home of Elizabeth Alvarado, 69. He bashed Alvarado in the head eight times with a baseball bat and stole her purse, which contained $350. While he was fleeing the scene, the victim's daughter, Josie Vargas, pulled into the driveway and saw Hernandez emerge from the home with a bloodied baseball bat and her mother's purse. She confronted Hernandez and managed to wrestle the bat from him and strike him with it before he got away. Vargas recognized Hernandez because the two had known each other most of their lives.

Inside the house, Vargas found her mother badly beaten. She believes her mother was alive and making noises while they waited for medical personnel, but she was pronounced dead at the hospital. Following the trail from the house, police found Alvarado's purse and a shoe print. They found Hernandez after about an hour, hiding in some bushes. His bloody shoes matched the print found with the victim's purse.

In the ten years prior to Alvarado's murder, Hernandez had been imprisoned and paroled three times. He was paroled in 1980 after serving 23 months of a 9-year sentence for burglary. In 1985, he was paroled after serving 4 years of a 15-year sentence for burglary of a home. After returning to prison for a parole violation, he was paroled again in January 1988. During this time, early release was common in Texas because of strict prison population caps imposed by U.S. District Judge William Wayne Justice.

In addition to his prison record, court records showed that Hernandez had two other felony convictions, had assaulted his wife and daughter, had assaulted other jail inmates, and threatened to kill the judge in his capital murder trial.

At his trial and during most of his appeals, Hernandez blamed the slaying on an alcohol-induced blackout. In the past month, however, he claimed that he did not commit the murder at all, but rather that he was at the scene and saw another unidentified man who was the killer. This week, defense attorneys produced a 12-year-old shirt which they claimed did not belong to Hernandez, but was tainted was Alvarado's blood. The state judge presiding over the case denied their request for a stay so that this new evidence could be considered.

At his execution, Hernandez expressed love for his family and did not mention the crime. He was pronounced dead at 6:24 p.m. Hernandez' execution was witness by Mary Jane Garcia, another daughter of the victim. It was only one month ago that Garcia traveled to Huntsville to witness the execution of Jack Wade Clark, who raped and murdered her daughter, Melisa Ann Garcia, in 1989.

The Lamp of Hope (Associated Press & Rick Halperin)

February 8 - TEXAS - A parolee with an extensive criminal record was executed Thursday night for fatally beating a 69-year-old West Texas woman with a baseball bat during a robbery at her home. Adolph Gil Hernandez, 50, was executed at 6:24 p.m. CST. He made a brief statement, expressing love to his family. "I want to thank my family for their help and moral support and for their struggle. It would have been a lot harder without their love. I am just going home," he told witnesses that included a daughter and 3 brothers. "I'll see y'all one of these days. Just don't rush it."

Hernandez, who had an extensive criminal record, insisted he was not the man who bashed Elizabeth Alvarado 8 times in the head with a bat and ran from her house with her purse containing $350 in September 1988. According to trial testimony, one of the victim's daughters and a great-grandson saw Hernandez emerge from Alvarado's kitchen carrying the bat and confronted him. Hernandez fled after a brief struggle. Police found him hiding in some bushes nearby. In earlier appeals, Hernandez blamed the slaying on an alcohol-induced blackout. In the past month, however, he contended the murder was committed by a black man whose identity he did not know. This week, defense attorneys produced a bloody shirt, stored in a garage for 12 years, which they said would clear the former barber. A state judge, however, refused to stop the execution.

Hernandez becomes the 4th condemned inmate to be put to death this year in Texas and the 243rd overall since the state resumed capital punishment on December 7, 1982. Hernandez becomes the 14th condemned inmate to be put to death this year in the USA and the 697th overall since executions were resumed on January 17, 1977.

New Hampshire Coalition to Abolish Death Penalty

"Texas Executes Convicted Killer," by Michael Graczyk. (Associated Press )

HUNTSVILLE, Texas (AP) A man convicted of fatally beating a 69-year-old woman with a baseball bat during a robbery was executed by injection Thursday. Adolph Gil Hernandez, 50, was the fourth condemned killer to be executed this year in Texas, where 40 executions were carried out last year. He made a brief statement, expressing love to his family. ``I want to thank my family for their help and moral support and for their struggle. It would have been a lot harder without their love. I am just going home,'' he told witnesses that included a daughter and three brothers. ``I'll see y'all one of these days. Just don't rush it.''

Hernandez, who had an extensive criminal record, insisted he was not the man who bashed Elizabeth Alvarado eight times in the head with a bat and ran from her house with her purse containing $350 in September 1988. According to trial testimony, one of the victim's daughters and a great-grandson saw Hernandez emerge from Alvarado's kitchen carrying the bat and confronted him. Hernandez fled after a brief struggle. Police found him hiding in some bushes nearby.

In earlier appeals, Hernandez blamed the slaying on an alcohol-induced blackout. In the past month, however, he contended the murder was committed by a black man whose identity he did not know. This week, defense attorneys produced a bloody shirt, stored in a garage for 12 years, which they said would clear the former barber. A state judge, however, refused to stop the execution.

The Daily Texan Online

"Hernandez Executed for Fatal Beating" (02-09-2001 Associated Press)

HUNTSVILLE - The scene was all too familiar for Mary Jane Garcia. Returning to Huntsville for the second time in a month, the West Texas woman watched Thursday night as a convicted killer was put to death for murdering one of her loved ones. "For me, it was the same," Garcia said after watching Adolph Gil Hernandez receive lethal injection for killing her 69-year-old mother with a baseball bat during a robbery more than a dozen years ago. "I'm just relieved and happy to know it's over. We don't have to worry about him getting out."

On Jan. 9, she was in the Texas death chamber as convicted killer Jack Wade Clark received lethal injection for the abduction, rape and fatal stabbing of her 23-year-old daughter more than 11 years ago. "My heart goes out to the victims in any of these cases," said Travis Ware, the former Lubbock district attorney who prosecuted Hernandez. "But especially in this case, where they lost two relatives in the same family to two completely unconnected cases. This has got to be a first."

Hernandez, 50, became the fourth inmate put to death this year in Texas, where a record 40 condemned killers were executed last year. "I want to thank my family for their help and moral support and for their struggle," Hernandez said in a brief final statement as he was strapped to the gurney. "It would have been a lot harder without their love." He told relatives watching through a window he would see them "one of these days," adding, "Just don't rush it." Eight minutes later, after a gasp and a sputter as the lethal drugs took effect, he was pronounced dead.

"He didn't suffer at all," said Ernestine Perez, another of victim Elizabeth Alvarado's daughters who watched the execution. "I was still waiting for something else when they said he's dead. How painful can that be? I wish my mother had the opportunity to give us a farewell like he did to his family, or that we had a chance to see her for the last time. "We weren't given that opportunity."

The execution came after Hernandez and his attorneys raised questions about his guilt. Hernandez, who initially said he suffered an alcohol-induced blackout the night of the slaying, in recent weeks denied any involvement and blamed the killing on a black man he couldn't identify. His lawyers also argued unsuccessfully that a bloody shirt they said that was uncovered after 12 years would exonerate Hernandez. Courts this week rejected their appeals and Gov. Rick Perry refused a request for a 30-day reprieve.

Hernandez had a history of burglary, auto theft and assaults, contended he was not the man who bashed Alvarado eight times in the head with the bat and ran from her house in Slaton, near Lubbock, with her purse containing $350. According to testimony at his trial, one of the victim's daughters, Josie, and a great-grandson saw Hernandez emerge from Alvarado's kitchen the night of Sept. 30, 1988 carrying the bat and confronted him. Hernandez then fled after a brief struggle. An hour later, police found him hiding in some bushes not far away.

ProDeathPenalty.Com

Adolpho Hernandez was executed for the Sept. 30, 1988 robbery and murder of 69-year-old Elizabeth Alvarado who was beaten to death with a baseball bat inside her Lubbock, Texas home. Her purse was stolen, with $350 in cash. Elizabeth's daughter confronted Hernandez as he was fleeing and managed to wrestle the baseball bat from him and hit him with it. He was found hiding in the bushes a short time later, with blood stains on his shirt, pants and shoes. In earlier appeals, Hernandez blamed the slaying on an alcohol-induced blackout. In the past month, however, he contended the murder was committed by a black man whose identity he did not know. This week, defense attorneys produced a bloody shirt, stored in a garage for 12 years, which they said would clear the former barber. A state judge, however, refused to stop the execution.

Elizabeth's family was again devastated one year later, when Elizabeth's granddaughter, Melissa Ann Garcia, was raped and stabbed to death by Texas death row inmate Jack Wade Clark . Clark was executed on January 9, 2001. Hernandez had multiple previous convictions: two counts of burglary in 1977 for which he received 8 years of probation. This was revoked because of a DWI so he was sent to prison in March 1978 and was paroled after almost two years; larceny with an 8 year sentence, another burglary in 1981 for which he received a 15 year sentence and was paroled in just over four years; then returned as a parole violator with a new conviction and 15 year concurrent sentence for "unauthorized use of a motor vehicle" from which he was paroled just eight months before murdering Elizabeth.