IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 20-70009

RUBEN GUTIERREZ, 

 Plaintiff - Appellee

v.

LUIS V. SAENZ; FELIX SAUCEDA, Chief, Brownsville Police Department; 

BRYAN COLLIER, EXECUTIVE DIRECTOR, TEXAS DEPARTMENT OF 

CRIMINAL JUSTICE; LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT 

OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; 

BILLY LEWIS, Warden, Texas Department of Criminal Justice, Huntsville 

Unit, 

 Defendants - Appellants

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:19-CV-185

Before SOUTHWICK, HAYNES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

On June 9, 2020, the district court granted Texas inmate Ruben 

Gutierrez’s stay of execution. The Texas Attorney General’s Office has 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 12, 2020

Lyle W. Cayce

Clerk

 Case: 20-70009 Document: 00515451509 Page: 1 Date Filed: 06/12/2020
No. 20-70009

2

appealed and moves this court to vacate the stay so that Gutierrez may be 

executed as scheduled on June 16, 2020. The State’s motion is GRANTED.

FACTUAL AND PROCEDURAL BACKGROUND

In 1999, Gutierrez was convicted of the murder of Escolastica Harrison 

and was sentenced to death. Details of the offense are set out in Gutierrez v. 

Stephens, 590 F. App’x 371, 373 (5th Cir. 2014). Important for one of our issues 

is that there was evidence that Gutierrez was one of two men inside the 

decedent’s home when she was murdered, and Gutierrez could be found guilty 

of capital murder even if he was only an accomplice. Id. at 373. Gutierrez’s 

conviction was affirmed on direct appeal. Gutierrez v. State, No. AP-73,462 

(Tex. Crim. App. Jan. 16, 2002) (not designated for publication). The Court of 

Criminal Appeals’ most recent denial of post-conviction relief was on June 12, 

2020, when it rejected an application to file a second subsequent writ 

application and also denied a stay of execution. Ex parte Gutierrez, No. WR59,552-05 (Tex. Crim. App. June 12, 2020) (not designated for publication).

On September 26, 2019, Gutierrez filed a complaint under 42 U.S.C. 

§ 1983, in the United States District Court for the Southern District of Texas. 

He sought DNA testing of certain evidence. The operative amended complaint 

was filed on April 22, 2020. He challenged the constitutionality of Chapter 64 

of the Texas Code of Criminal Procedure, and of the protocols under which it 

was applied. He also sought to override the Texas Department of Criminal 

Justice’s policy refusing to allow chaplains to accompany inmates into the 

execution chamber itself. The State filed a motion to dismiss, which was 

granted only in part. That court later entered a stay of execution. The State 

appealed. 

 Case: 20-70009 Document: 00515451509 Page: 2 Date Filed: 06/12/2020
No. 20-70009

3

DISCUSSION

In granting the stay, the district court concluded that Gutierrez made a 

showing of likelihood of success on the merits “of at least one of his DNA or 

[chaplain] claims.” We review a district court’s grant of a stay of execution for 

abuse of discretion. Sepulvado v. Jindal, 729 F.3d 413, 420 (5th Cir. 2013). 

When deciding whether to stay an execution, the district court is to 

consider four factors: “(1) whether the stay applicant has made a strong 

showing that he is likely to succeed on the merits; (2) whether the applicant 

will be irreparably injured absent a stay; (3) whether issuance of the stay will 

substantially injure the other parties interested in the proceeding; and 

(4) where the public interest lies.” Green v. Thaler, 699 F.3d 404, 411 (5th Cir. 

2012) (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). The first two factors 

are the most significant for deciding a stay. Nken, 556 U.S. at 434.

On appeal, the State argues the district court abused its discretion in 

granting a stay because Gutierrez’s DNA claims are time-barred and meritless 

and Gutierrez’s chaplain claims are meritless.

I. DNA claims

The parties dispute whether Gutierrez’s DNA claims are timely. We 

need not answer that question because of our conclusion that the DNA claims 

are unlikely to succeed on the merits. 

There is no constitutional right for a convicted person to obtain evidence 

for postconviction DNA testing, but a right to obtain DNA testing may be 

created by state law. District Attorney’s Office for the Third Judicial Dist. v. 

Osborne, 557 U.S. 52, 67–73 (2009). Because Texas has created such a right, 

its procedures for a convicted defendant to obtain this right must satisfy due 

process. Id. at 72–74.

 Case: 20-70009 Document: 00515451509 Page: 3 Date Filed: 06/12/2020
No. 20-70009

4

Texas’s procedure for inmates to obtain DNA testing includes a 

requirement that they show by a preponderance of the evidence that they 

would not have been convicted if exculpatory results had been obtained 

through DNA testing. TEX. CODE CRIM. P. ch. 64.03(a)(2)(A). Gutierrez argues 

Chapter 64 is facially violative of due process. According to Gutierrez, this 

preponderance-of-the-evidence standard is “unusually and unreasonably 

high.” He argues the materiality standard should be lower. Although the 

Court in Osborne did not resolve the appropriate materiality standard, it did 

approve of Alaska’s postconviction procedures, as applied to DNA testing, 

requiring that defendants seeking access to DNA evidence must show the 

evidence is “sufficiently material.” Osborne, 557 U.S. at 70. States use varying 

materiality standards. We see no constitutionally relevant distinction between 

what was approved in Osborne — sufficiently material — and requiring an 

inmate to show materiality by a preponderance of the evidence. 

Gutierrez further argues that Chapter 64 is fundamentally unfair as 

applied by the Court of Criminal Appeals. According to Gutierrez, that court 

interprets Chapter 64 to preclude DNA testing if the proposed testing would 

simply “muddy the waters.” Gutierrez contends this interpretation heightens 

the fundamental unfairness of the statutory standard itself. Yet the Supreme 

Court allowed denial of DNA testing unless the results were likely to be 

“conclusive.” Id. at 65, 70. 

The problem for Gutierrez is that he was convicted without jurors 

needing to decide whether he was the actual murderer or an accomplice. He 

confessed to being inside the home. The jury was permitted to find Gutierrez 

guilty “of capital murder if, among other things, it found that appellant ‘acting 

alone or as a party’ with the accomplice intentionally caused the victim’s 

death.” Gutierrez, 590 F. App’x at 374. A search for DNA on the victim’s 

clothing and elsewhere would not reasonably lead to evidence that would 

 Case: 20-70009 Document: 00515451509 Page: 4 Date Filed: 06/12/2020
No. 20-70009

5

exclude Gutierrez as an accomplice. In his briefing before this court, he wholly 

failed to show how the DNA testing he requests would be “sufficiently 

material” to negate his guilt thus justifying the pursuit of DNA testing at this 

late date. Therefore, because Gutierrez has not shown by a preponderance of 

the evidence that he would not have been convicted if exculpatory results were 

obtained, he cannot prevail. 

Gutierrez failed to show that the Court of Criminal Appeals’ application 

of Chapter 64 as to him was fundamentally unfair. We conclude that Chapter 

64 both facially and as applied by the Court of Criminal Appeals comports with 

the Supreme Court’s decision in Osborne. Consequently, this claim is likely to 

fail on the merits and cannot justify a stay of execution.

II. Chaplain claims

Gutierrez challenges the TDCJ’s policy disallowing chaplains and 

spiritual advisors in the execution room itself. The policy, revised in 2019, 

provides that on the day of execution the death row inmate may visit with a 

TDCJ chaplain and a minister or spiritual advisor “who has the appropriate 

credentials,” but chaplains and spiritual advisors are not permitted in the 

execution chamber. As part of the 2019 revised execution policy, “[o]nly TDCJ 

security personnel shall be permitted in the execution chamber.” According to 

Gutierrez, this policy violates his rights under the Establishment Clause, the 

Free Exercise Clause, and the Religious Land Use and Institutionalized 

Persons Act (“RLUIPA”). We will follow that order in our analysis.

A. Establishment Clause claim

In his complaint, Gutierrez argues TDCJ’s execution policy prohibiting 

a chaplain from being present in the execution chamber violates the 

Establishment Clause because it is not neutral between religion and nonreligion and inhibits the practice of religious beliefs. 

 Case: 20-70009 Document: 00515451509 Page: 5 Date Filed: 06/12/2020
No. 20-70009

6

The parties do not on agree as to which constitutional standard is 

applicable. Gutierrez argues this policy should be reviewed under strict 

scrutiny. The State argues we should apply a test of reasonableness derived 

from Turner v. Safley, 482 U.S. 78 (1987). In Turner, the Supreme Court held 

that “when a prison regulation impinges on inmates’ constitutional rights, the 

regulation is valid if it is reasonably related to legitimate penological 

interests.” Turner, 482 U.S. at 89. The regulations reviewed by the Turner 

Court included restrictions on inmate-to-inmate mail and inmates’ right to 

marry. Id. at 81. We conclude Turner applies.

Under Turner, we consider: 

(1) whether a “valid, rational connection [exists] between the 

prison regulation and the legitimate governmental interest put 

forward to justify it,” (2) whether there exist “alternative means of 

exercising the fundamental right that remain open to prison 

inmates,” (3) what “impact accommodation of the asserted 

constitutional right will have on guards and other inmates, and on 

the allocation of prison resources generally,” and (4) whether there 

is an “absence of ready alternatives” to the regulation in question.

Adkins v. Kaspar, 393 F.3d 559, 564 (5th Cir. 2004) (quoting Turner, 482 U.S. 

at 89–90). Gutierrez fails to make a strong showing of a likelihood of success 

in establishing that TDCJ’s execution policy is not “reasonably related to 

legitimate penological interests.” Turner, 482 U.S. at 89.

B. Free Exercise Clause claim

Gutierrez’s claim that TDCJ’s execution policy violates the Free Exercise 

Clause is largely a recitation of his Establishment Clause claim. Again, 

Gutierrez argues TDCJ’s policy cannot survive strict scrutiny. Circuit 

precedent, as the district court agreed in this case, requires application of 

Turner to a Free Exercise claim. See Brown, 929 F.3d at 232–42. We have 

identified the factors in our discussion of the Establishment Clause, and they 

similarly prevent success for Gutierrez’s Free Exercise claim. 

 Case: 20-70009 Document: 00515451509 Page: 6 Date Filed: 06/12/2020
No. 20-70009

7

Among Gutierrez’s arguments is that the prior policy, which would 

satisfy his interest, allowed only Christian or Muslim spiritual advisors into 

the execution chamber. See Murphy v. Collier, 139 S. Ct. 1475 (2019). There 

was a suggestion by one justice that what would end the Equal Protection claim 

would be to prohibit any ministers or religious advisors into the execution 

chamber itself but permit all to be in the viewing room. Id. at 1475–76 

(Kavanaugh, J., concurring to grant of a stay). The TDCJ decided to take that 

advice. One justice’s views are not precedent, but we conclude that the 

concurring opinion made a valid appraisal of the issue. Gutierrez is unlikely 

to establish that TDCJ’s execution policy is not “reasonably related to 

legitimate penological interests.” Turner, 482 U.S. at 89.

Having denied the legal argument, we acknowledge the strong religious 

arguments made by Gutierrez and also in an amicus brief from the Texas 

Catholic Conference of Bishops. We can apply only the legal standards and 

have concluded that what the State has done here satisfies those. 

C. RLUIPA claim

The RLUIPA provides that the government shall not “impose a 

substantial burden” on an inmate’s religious exercise, unless the government 

demonstrates that imposition of the burden on that person “(1) is in 

furtherance of a compelling governmental interest; and (2) is the least 

restrictive means of furthering that compelling governmental interest.” 42 

U.S.C. § 2000cc-1(a). Gutierrez bears the burden of demonstrating the policy 

imposes a “substantial burden” on his religious exercise. Adkins, 393 F.3d at 

567. 

Gutierrez argues that TDCJ’s policy disallowing chaplains and spiritual 

advisors in the execution chambers is a substantial burden on his religious 

exercise because the policy prohibits him from receiving a Christian chaplain’s 

guidance just before death. Yet Gutierrez has failed to show that this policy 

 Case: 20-70009 Document: 00515451509 Page: 7 Date Filed: 06/12/2020
No. 20-70009

8

“creates a ‘substantial burden’ on a religious exercise [that] truly pressures the 

adherent to significantly modify his religious behavior and significantly violate 

his religious beliefs.” Id. at 570. Perhaps Gutierrez is being denied the final 

measure of spiritual comfort that might be available. As important as that is, 

government action does not rise to the level of a substantial burden on religious 

exercise if it merely prevents the adherent from enjoying some benefit that is 

not otherwise generally available. Id. 

We conclude that Gutierrez does not have a reasonable likelihood of 

success on any of his First Amendment claims or under RLUIPA.

III. Remaining stay factors

Because Gutierrez fails to show likelihood of success on the merits as to 

his DNA and chaplain claims, he fails to satisfy the first factor warranting a 

stay of execution. As to the second factor, the possibility of irreparable injury 

in a capital case weighs heavily in the movant’s favor. O’Bryan v. Estelle, 691 

F.2d 706, 708 (5th Cir. 1982). Nevertheless, there comes a time when the legal 

issues “have been sufficiently litigated and relitigated so that the law must be 

allowed to run its course.” Id. Given the extent of Gutierrez’s litigation and 

re-litigation of claims in both state and federal court, we conclude he has not 

made a showing of irreparable injury. Because the first two, and most critical 

factors do not weigh in Gutierrez’s favor, and neither do the remaining two, we 

conclude the district court abused its discretion in granting Gutierrez’s motion 

to stay his execution. 

The motion to vacate the stay of execution is GRANTED.

 Case: 20-70009 Document: 00515451509 Page: 8 Date Filed: 06/12/2020