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San Jacinto News-Times - Local News
Stories Added - May 2010
Copyright 2010 - Polk County Publishing Company

Executed man’s hair still sought
San Jacinto News- Times

COLDSPRING – TIME Magazine is the latest to get involved in a battle over a tiny, one-inch hair fragment found at a 1989 murder scene in San Jacinto County. San Jacinto County Criminal District Attorney Bill Burnett has the hair; The Texas Observer, Innocence Project, Inc., Innocence Project of Texas and Texas Innocence Network all want the hair for DNA testing, but Burnett refuses to play. Talking last month about the upcoming TIME Magazine article (the article was published this week) Burnett appeared to be amused that TIME would send Photographer Mark Mahaney all the way from Brooklyn, New York just to photograph him. “Mahaney actually spent several hours here in the offi ce taking pictures,” Burnett said. Along with the photograph of Burnett, TIME published a story this week putting the controversial hair at the center of a capital murder that goes back to Aug. 1989 when Allen Hilzendager was shot to death while working at a liquor store between Point Blank and Oakhurst on Hwy. 190. Crime scene evidence collected by local deputies included several hairs from the counter near the cash register and one from the cash drawer itself. In November 1989, Timothy Mark Jordan and Kerry Dixon were arrested for Hilzendager’s murder after eyewitnesses placed Dixon’s beige Ford truck at the liquor store during the time of the murder. The following month, Claude Howard Jones was arrested. During a trial in August 1990, the prosecution alleged that Jones robbed the store and shot the victim with Jordan’s gun while Dixon waited in the car in the parking lot. Jordan testifi ed that Jones confessed to the murder several times. Stephen Robertson, a chemist at the Texas Department of Public Safety, testifi ed that a hair fragment found on the counter of the liquor store “could have belonged to Jones,” but not to Dixon, the victim or other individuals whose samples were collected. Jones was convicted of capital murder and sentenced to die. Dixon was convicted of capital murder and given a 60- year sentence and Jordan was charged with capital murder but plea bargained his capital murder charge and a robbery charge in another county down to a 10-year sentence for a lesser offense. Jones appealed his case in December 1994 but the Texas Court of Criminal Appeals upheld his conviction and death sentence in a 3-2 decision. Two judges felt the evidence against Jones was not suffi cient to justify his conviction for murder. T h r e e felt the hair was cr itical p h y s i - cal evid e n c e t y i n g Jones to the crime. Following an attempt to get a stay of execution pending new and more accurate mitochondrial- DNA testing on the controversial hair fragment, Jones was executed in December 2000. The hair, thought to be destroyed in the years since Jones’ execution, was accidentally found sealed in a plastic bag and forgotten in the San Jacinto County District Clerk’s evidence room. During May 2004, Jordan recanted his testimony that Jones told him he committed the murder, saying he learned from Dixon, not from Jones, everything he reported at trial about the robbery and killing. The Texas Observer, the Innocence Project, the Innocence Project of Texas and the Texas Innocence Network entered the scene in August of 2007, fi ling suit against Burnett and San Jacinto County, asking that Burnett not destroy the hair and to consent to DNA testing. Prior to fi ling the suit, an open records request for the hair was fi led by the Innocence Project. Burnett refused saying that physical evidence is not covered under the Open Record’s Act. His action was upheld by a Texas Attorney General’s opinion. Co-director of the Innocence Project is Barry Scheck, best known for his role on O.J. Simpson’s defense team. The TIME article accuses Burnett of preventing something that “every other prosecutor supports, at least in theory: using an available DNA test to find out the truth in a case.” Burnett argues that even if the hair is not Jones’ hair and Jones was not in the store, he is still guilty as a party to the offense under Texas law of parties. Chapter 7.02 of the Texas Penal Code states a person can be criminally responsible for the actions of another if that person acts with the intent to promote or assist the commission of the offense and solicits, encourages, directs, aids or attempts to aid the other person to commit the offense, whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.” It further states, “If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed.”

 

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