Office of the Attorney General News Release Archive
Thursday, October 18, 2001
Gerald Lee Mitchell to be Executed
AUSTIN - Texas Attorney General John Cornyn offers the following information on Gerald Lee Mitchell, who is scheduled to be executed after 6 p.m. on Monday, October 22, 2001.
On April 11, 1986, Mitchell was sentenced for the capital murder of Charles Angelo Marino, which occurred in Houston, Texas, on June 4, 1985. A summary of the evidence presented at trial follows.
FACTS OF THE CRIME
On June 4, 1985, Gerald Lee Mitchell abducted and shot Charles Angelo Marino and his 15-year-old brother-in-law, Kenneth Fleming, killing Marino.
Marino and Fleming drove to Lincoln City Park in Houston to purchase marijuana. Mitchell and another man approached Marino's car, a Trans-AM, and offered to sell them marijuana. Mitchell and the other man got into Marino's car and directed him to drive to a house. Mitchell left the car to get a shotgun, which he hid in his warmup pants. When Mitchell returned, the men drove to a dead-end street where Mitchell pulled out the shotgun, demanded the car keys, and tried to force Marino and Fleming into the trunk. When they refused, Mitchell made them walk to a vacant house. After getting the car keys from Marino, Mitchell directed the men into the vacant house, taking Marino's wallet as they walked. Mitchell pumped the shotgun, stating, "You don't believe I'll shoot you, man?" He then kicked in the door and all went inside.
Once inside the vacant building, the second man, who had not been an active participant in the abduction, told Mitchell to take Marino's and Fleming's clothing and leave them there. Mitchell whispered to him to get some rope, at which point the second man left and did not return. Mitchell forced Marino and Fleming to sit on the floor and said, "Raise your hands white boy, you don't want to die with your hands down." Mitchell then shot Marino in the chest. Fleming rolled into a ball and Mitchell then shot him. Fleming heard the gun pump before being shot, and Mitchell stating, "You in the white shirt, I don't think you're dead, white boy," referring to Marino. Marino died from a shotgun wound to the chest. Fleming, who was wounded in the chest, hip and arm, survived by feigning death.
Donald Newsome was walking in the vicinity of the vacant house, heard shots, and saw Mitchell come out of the back of the house with a shotgun over his shoulder. When Mitchell saw Newsome, he was laughing and said, "You don't have to be scared of me, I'm just shooting at some birds." Mitchell then put the gun in the backseat of a "tan or goldish Trans-Am" and drove off.
Mitchell was later arrested in Corpus Christi in possession of Marino's car. Mitchell was transported back to Houston, where he told Sergeant Parish of the Houston Police Department something like, "I want to get if off my chest, I shot the two white boys." Mitchell gave a written confession admitting the shootings, but claiming they were accidental.
Mitchell is confined pursuant to a judgment and sentence of the 338th Judicial District Court of Harris County, Texas, Cause No. 426,583, styled The State of Texas vs. Gerald Lee Mitchell. Mitchell was indicted on June 8, 1985, for the capital offense of the intentional murder of Charles Angelo Marino while in the course of committing and attempting to commit robbery of Marino on or about June 4, 1985. The case against Mitchell was heard by a jury, which found him guilty of capital murder on April 7, 1986. Following a separate punishment hearing, the jury affirmatively answered the two special issues submitted pursuant to former Tex. Code Crim. Proc. Ann. art. 37.071 § 2 (West 1985). In accordance with Texas law, the trial court on April 11, 1986, sentenced Mitchell to death.
Mitchell's conviction and sentence were automatically appealed to the Texas Court of Criminal Appeals. The Court of Criminal Appeals affirmed Mitchell's conviction and sentence on January 27, 1993. Mitchell v. State, No. 69,631 (Tex. Crim. App. Jan. 27, 1993) (unpublished). Mitchell next filed a petition for a writ of certiorari, which was denied by the United States Supreme Court on October 4, 1993.
Mitchell filed an application for writ of habeas corpus under Article 11.071 of the Texas Code of Criminal Procedure in state court on September 19, 1994. Mitchell then filed an amended application on January 19, 1995, and a second amended application on March 4, 1997. The court entered findings of fact and conclusions of law recommending that relief be denied on February 18, 1998. Ex parte Mitchell, No. 426,583-A (338th Judicial District Court of Harris County, Texas, Feb. 18, 1998). The Court of Criminal Appeals denied relief based on its own review of the record and the trial court's findings and conclusions on September 16, 1998. Ex parte Mitchell, No. 37,044-01 (Tex. Crim. App. Sept. 16, 1998). Mitchell filed a subsequent application in the trial court for writ of habeas corpus under Article 11.071 on September 23, 1998. The Court of Criminal Appeals ruled that the application failed to satisfy the pleading requirement imposed by Article 11.071 § 5, and dismissed the application as an abuse of the writ on December 16, 1998. Ex parte Mitchell, No. 37,044-02 (Tex. Crim. App. Dec. 16, 1998).
On September 14, 1999, Mitchell filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the District Court for the Southern District of Texas, Houston Division. That petition, and a certificate of appealability, were denied on September 7, 2000. Mitchell sought a certificate of appealability from the United States Court of Appeals for the Fifth Circuit, which was denied on March 12, 2001. Mitchell then sought a certificate of appealability for the United States Supreme Court, which was denied on April 16, 2001.
On September 12, 2001 Mitchell filed another subsequent application for writ of habeas corpus in state court. That application was denied by the Court of Criminal Appeals on October 10, 2001.
PRIOR CRIMINAL HISTORY
During the punishment phase of Mitchell's trial, the State introduced evidence that Mitchell had committed another murder only a few hours before he killed Marino. Mitchell admitted to police that he approached Hector Mungia and demanded a necklace that he was wearing. Mitchell killed Mungia with a shotgun blast when he refused to comply. Mitchell then went to a friend's house and went to sleep.
The State also introduced evidence that Mitchell committed a burglary a few days after killing Moreno and Mungia. Other punishment phase evidence included:
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