Office of the Attorney General News Release Archive

Wednesday, March 20, 2002

MEDIA ADVISORY

Rodolfo Baiza Hernandez Scheduled to be Executed

AUSTIN - Texas Attorney General John Cornyn offers the following information on Rodolfo Baiza Hernandez, who is scheduled to be executed after 6 p.m. on Thursday, March 21, 2002.

On Sept. 26, 1985 Rodolfo Baiza Hernandez was sentenced to death for the capital murder of Victor Manuel Serrano Cervan, in Comal County, Texas, on or about March 7, 1985. A summary of the evidence presented at trial follows.

FACTS OF THE CRIME

In early March, 1985, five young men in Mexico boarded a box car which would transport them into the United States. When they arrived in San Antonio, they were approached by Rodolfo Baiza Hernandez, who asked them what they were doing. In the course of the conversation, Hernandez learned that the five men were trying to reach Denton, Texas, where they hoped to find work on a farm or ranch. Hernandez then took the five men to his house in an attempt to find them transportation to Denton.

While the men waited outside the house, Hernandez awakened his brother-in-law Jesse Garibay and arranged for Garibay to transport the men in the family car for a fee. Garibay drove, Hernandez sat in the passenger's seat, his brother Richard sat between them in the front seat, and the five men sat in the back. Richard was dropped off at his place of employment and the seven men continued north into Comal County.

After reaching a secluded part of the county, Garibay and Hernandez stopped the car and pretended that they were having car trouble. One of them opened the trunk and took out several firearms. Moments later, Garibay and Hernandez ordered the men out of the car at gunpoint. One man tried to run away but Hernandez shot him in the back. Hernandez then ordered the five men to lie face up on the ground and to hand over their money. He went from one to another, taking what ever they had and shooting each one in the neck. After taking what they could and leaving the five men bleeding on the ground, Hernandez and Garibay sped away and returned home to San Antonio. One of the five victims, Victor Manuel Serrano Cervan, died; the other four survived. Two of the survivors testified against Hernandez at trial.

After Hernandez and Garibay returned home, Susan Garibay observed her husband, Jesse Garibay, covering himself with blankets and acting scared. Her brother, Rodolfo Hernandez, sat watching television while slinging a gun on his little finger. When a news report came on about the shootings in Comal County, Hernandez told his sister that he was "a gunslinger" and President Reagan told him that "Texas was overpopulated and had instructed him to get rid of some of San Antonio's illegal aliens." Hernandez was laughing and joking so his sister did not take the statements seriously.

Several days later, Hernandez and Garibay were staying with a neighbor, Anthony Urbano. Again, a news report appeared on television about the multiple shootings near New Braunfels. Hernandez, while swinging two little guns on his fingers, bragged to Urbano that he had shot the men and killed one of them.

Soon after these incidents, Hernandez took two guns to a friend and asked the friend to sell them for him. The police later recovered the guns. Firearms experts testified that the two pistols were the ones that had fired the bullets recovered from the five victims.

PROCEDURAL HISTORY

May 15, 1985 - Hernandez was indicted for the capital murder of Victor Manuel Serrano Cervan in the course of committing and attempting to commit robbery.

September 25, 1985 - A jury found Hernandez guilty of capital murder.

September 26, 1985 - Following a separate punishment hearing, Hernandez was sentenced to death in accordance with state law.

October 24, 1990 - Hernandez' case was automatically appealed to the Texas Court of Criminal Appeals, which affirmed the conviction and sentence in a published opinion.

December 5, 1990 - The Texas Court of Criminal Appeals denied rehearing.

June 3, 1991 - The United States Supreme Court denied Hernandez' petition for writ of certiorari.

August 15, 1991 - Hernandez then filed a petition for a state writ of habeas corpus.

October 7, 1993 - An appointed special master submitted proposed findings of fact and conclusions of law to the trial court.

October 27, 1993 - The trial court adopted the findings and conclusions in an order recommending all relief be denied.

June 28, 1994 - In an unpublished order, the Texas Court of Criminal Appeals denied relief, finding that the trial court's findings of fact and conclusions of law were fully supported by the record.

September 26, 1994 - Hernandez filed a second petition for writ of certiorari from the Court of Criminal Appeals' denial of habeas relief.

January 9, 1995 - The Supreme Court denied the petition for writ of certiorari. Subsequently, the trial court set an execution date for Feb. 22, 1996.

February 7, 1996 - Hernandez thereafter sought from the district court a stay of execution and the appointment of counsel. The district court granted the motions and ordered Hernandez to file his federal habeas petition by June 30, 1996.

April 11, 1997 - After nearly one year of extensions, Hernandez filed his federal habeas petition.

July 14, 1997 - The Director of the Texas Department of Criminal Justice filed his Answer, Motion for Summary Judgment, and Supporting Brief.

August 12, 1998 - The district court denied habeas corpus relief. In the same order, the district court granted a certificate of appealability to the United States Court of Appeals for the Fifth Circuit

April 11, 2001 - The Fifth Circuit affirmed the district court's denial of relief and Hernandez filed a petition for writ of certiorari in the United States Supreme Court.

November 26, 2001 - Hernandez' petition for writ of certiorari was denied.

CRIMINAL HISTORY

At the punishment phase of trial, the State called Bob Steele and Al Cuellar, both Texas Rangers, to testify that Hernandez was not a peaceful and law abiding citizen.

The State introduced evidence reflecting that Hernandez was convicted on two counts of aggravated robbery in 1974.

Mary Van Sickle, Hernandez' parole officer from 1982 to 1983 testified that the court revoked Hernandez' parole in 1983 because he illegally possessed two handguns, a .25-caliber handgun and a .38-caliber handgun with ammunition. After the revocation, Hernandez was returned to the Texas Department of Corrections. Van Sickle did not recall when Hernandez was again released from prison.

MISCELLANEOUS

For additional information and statistics, please log on to the Texas Department of Criminal Justice website, www.tdcj.state.tx.us.

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