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Rogelio Gutierrez

Other Bexar County, Texas exonerations
On December 29, 1992, police in San Antonio, Texas were called to a mobile home on New Laredo Highway, where a 13-year-old girl said she had been beaten and raped by several members of a street gang. The girl, C.M., said that she was a member of the gang and that the attack was ordered because of a dispute she had with another female gang member.

Based on her statement, police made some arrests that night, including 18-year-old Ersan Yurtman. Over the next few months, more arrests were made. On May 18, 1993, police arrested 16-year-old Rogelio Gutierrez. A total of 10 adults and juveniles were charged with aggravated sexual assault of a child under the age of 14. Six were convicted, including Gutierrez and Yurtman.

The mobile home was emblazoned with symbols of the Westside Vario Kingz gang and was used as a hangout. Gutierrez, whose nickname was “Spit,” had been staying there with his girlfriend, Monica Esparza.

In February 1994, Gutierrez, Yurtman and two others, Frank Gomez and Michael Terrazas, went to trial in Bexar County Criminal District Court.

Esparza testified that she and Gutierrez were with friends in downtown San Antonio when she and Gutierrez had a “little disagreement.” She said Gutierrez left with some friends while she stayed downtown. Later, she said she went to the trailer and went into the room where she and Gutierrez had been staying. She found C.M. sitting on the bed, weeping. Her face was swollen and she said she had been raped by “Spit, Slick and Diamond.” Esparza said C.M. told her that “eight guys” had raped her. Esparza also testified that she did not see any beer cans or bottles or broken glass in the room or on the bed. She also said she saw no blood on the bed. Esparza said she called the police and reported the attack.

C.M., a chronic runaway, testified that she had joined a gang at age 11, took birth control, and owned a handgun. She said on December 28, 1992, the day before the attack, she was hanging out downtown with some fellow gang members and got on a bus to go home. When she missed her stop, two gang members invited her to go with them. She said that one of them was Yurtman, whom she knew as “Diamond.” They took her to the trailer and she spent the night on the couch. She said she left the next morning, December 29, but returned around 6 p.m. Several young people—boys and girls—were there and others showed up later, including a girl named Priscilla. Among those there, she said, were Yurtman and Gutierrez.

C.M. said that she and Priscilla got into a shouting match and a gang member she knew as “Pee Wee” went into a bedroom with Priscilla. When Priscilla emerged, Pee Wee called C.M. into the bedroom and told her that as punishment, she had to “get trained”—gang-raped.

C.M. said that Pee Wee struck her in the face and that several other males came into the room and began hitting her, including Gutierrez and Yurtman. “All of them…at one time,” she said. She said they punched her with fists and hit her on the head with quart bottles of beer, which shattered.

C.M. said she was stripped naked and vaginally raped. She did not say that anyone forced her to perform oral sex. Ultimately, the attack was stopped and she was allowed to get dressed, she said. One gang member said that if she told anyone, she would be killed.

Dr. Sandra Jo Ahlers, the physician who examined C.M., testified that the girl had bruises on her right arm, abnormal swelling on the outside of her vagina as well as slight bleeding and broken blood vessels that would have been caused by extreme force or pressure. Dr. Ahlers said the girl’s uterus and ovary areas were very tender, which was unusual for a 13-year-old girl.

Pee Wee testified for the prosecution that he had pled guilty as a juvenile to aggravated sexual assault and was sentenced to the Bexar County Juvenile Facility. He said that in return for his testimony, the prosecution promised to write a letter to juvenile authorities about his cooperation.

He said that numerous members of the gang assaulted C.M., including Gutierrez and Yurtman. He said that Yurtman forced C.M. to engage in oral sex. He described various gang members, including Larry Salazar, as hitting, kicking and raping C.M. He did not say that Gutierrez participated, but that he was in the room during the assault.

Salazar testified for the prosecution that Gutierrez pulled C.M.’s hair and forced her to perform oral sex. He admitted that he vaginally raped C.M. He implicated several other gang members as well. Salazar’s case was pending at the time of the trial.

In February 15, 1994, Gutierrez and Yurtman were convicted of aggravated sexual assault of a child under the age of 14. Gomez and Terrazas were acquitted. Gutierrez and Yurtman each were sentenced to 30 years in prison.

On March 15, 1994, C.M. came to the office of Gutierrez’s lawyer and gave a sworn statement recanting her testimony. She said that Gutierrez and Yurtman “did not do anything at all to me. Neither one of them hit me, kick me, threaten me, have sex with me or encourage anyone else to have sex with me or hurt me.”

“I testified at the trial that they were guilty because the Assistant District Attorney told me I would go to jail if ‘you screw up,’” she said. “They told me I would not go juvenile jail, but to county jail with the adults. I was very scared….I can’t stand it that I have sent two innocent men to jail and I want to straighten everything out.”

Based on the statement, lawyers for Gutierrez and Yurtman filed a motion for a new trial. A hearing on the motion for new trial was held in May 1994.

At the hearing, Esparza testified that C.M. “had first told me that Rogelio wasn’t one of them that did it. And then she told yes, and then no. She did that several times.” Esparza said that C.M. was very confused. Esparza said that after the trial, C.M. called her and asked Esparza to accompany her to the prosecution office to “tell them that Rogelio and Ersan were innocent.”

C.M. testified that her testimony implicating Gutierrez and Yurtman was false. She said she had met several times with the prosecutors prior the trial and repeatedly told them that Gutierrez and Yurtman were innocent. She testified against Gutierrez and Yurtman “because I was threatened by the DA [that] if I didn’t say what I was supposed to say I would go to jail.”

Pastor Jose Barrientes also testified that C.M. had recanted to him. He described C.M. as “a tired girl” who “needs help.” He said she told him that Yurtman and Gutierrez were innocent.

A polygraph examiner testified that C.M. had taken a polygraph and showed no deception when she said that Gutierrez and Yurtman had assaulted her.

Two prosecutors, Mary Ellen Smyth and A.J. Dimaline, testified that they met with C.M. before the trial, but not multiple times as C.M. claimed. They denied they had threatened C.M. and denied that C.M. told them that Gutierrez and Yurtman were innocent.

Two San Antonio police officers testified about taking statements from C.M. Both admitted she was distraught and crying, and both said that she identified her attackers by their nicknames. The first officer who interviewed C.M. at the trailer said that the first two names C.M. gave were “Spit” and “Diamond”—Gutierrez and Yurtman.

The trial judge denied the motion for new trial, ruling that C.M.’s recantation was not credible.

In January 1996, the Texas Fourth Court of Appeals denied Gutierrez’s appeal. The following month, the appeals court denied Yurtman’s appeal.

For the next several years, Yurtman filed unsuccessful state law writs of habeas corpus.

In 2006, Yurtman, acting without a lawyer, filed a writ application claiming that DNA testing on a blanket found on the bed where the attack occurred failed to show the presence of his DNA. He also presented affidavits from four witnesses who said Yurtman was not involved. That writ was rejected in 2007.

Eventually, in about 2011, Gutierrez obtained the assistance of the St. Mary’s University School of Law Wrongful Convictions Project in San Antonio. In 2015, the Bexar County District’s Attorney’s Conviction Integrity Unit began re-investigating the case.

The re-investigation showed that prior to the trial, records showing that C.M. had a history of mental illness and psychological problems were in the possession of the state and were not disclosed to the defense, although the trial prosecutors said they had not seen them and the records were not in the prosecution files for Gutierrez and Yurtman. In addition, the police were aware that, after the 1992 attack and before the trial, C.M. had alleged she was victimized again in another gang rape, which was not corroborated. This information was not provided to the prosecution, who therefore were unable to provide it to the defense. The prosecution and the defense reached a preliminary agreement that Gutierrez’s conviction should be vacated and, on March 31, 2015, Gutierrez was released on a bond pending a final determination on his writ.

At a hearing on the writ, Dr. David Gunzburger, a clinical psychologist, testified that there was “ample documentation” that C.M. had severe mental health problems prior to and after the attack. Gunzburger said C.M. had an IQ of 71, which was borderline for mental disability. He noted she had substance abuse issues, suffered from anger management problems, depression, and psychic distress. He said that C.M. had more diagnoses of mental health problems than any other person he had encountered in 35 years of practice.

In March 2020, Criminal District Court Judge Jefferson Moore signed findings that were agreed to by the prosecution and the defense. The 49-page order recommended that Gutierrez and Yurtman’s convictions be vacated.

“The trial court agrees that the State’s case had been significantly undermined by the newly discovered evidence related to [C.M.’s] mental health in and around the time of the offense,” the order said. “[C.M.’s] trial testimony implicating Gutierrez and Yurtman should now be viewed in a different light, as it compares to all of the post-trial evidence…such as [C.M.’s] multiple recantations, her allegations of pressure from prosecutors, her mental health history, and her prior false allegations of being gang-raped by the same group.”

On July 1, 2020, the Texas Court of Criminal Appeals granted the writs for both men and vacated their convictions. On July 8, 2020, the charges against both men were dismissed. Yurtman was then released.

– Maurice Possley

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Posting Date: 8/10/2020
Last Updated: 8/10/2020
Most Serious Crime:Child Sex Abuse
Additional Convictions:
Reported Crime Date:1992
Sentence:30 years
Age at the date of reported crime:16
Contributing Factors:Perjury or False Accusation, Official Misconduct
Did DNA evidence contribute to the exoneration?:No