Man's conviction thrown out over questions about cell phone

Thursday, November 23, 2006

(11/23/06 - HOUSTON) -- The whereabouts of a cell phone played a role in the state's highest criminal court throwing out the conviction of a man who served about half of a 15-year prison sentence for aggravated assault.

The Texas Court of Criminal Appeals granted a writ of habeas corpus Wednesday to 29-year-old Gilbert Amezquita, who has been in prison since his 1998 conviction in the brutal beating of a Houston woman who was in a coma for 10 days after the workplace attack.

When she regained consciousness, Kathy Bingham couldn't tell police who attacked her, but when asked again later, she whispered "Gilbert," according to court records. She also testified during the trial that Amezquita, a co-worker, was her attacker.

Roland Moore, Amezquita's attorney, argued on appeal that Harris County prosecutors failed to consider another co-worker named Alonzo Gilbert Guerrero, who the appeals court said exchanged Bingham's cell phone for drugs shortly after the attack.

Guerrero, who had a criminal record that included assault at the time of the attack, is serving a seven-year sentence for a burglary.

When police asked her about the missing cell phone, Bingham said she hadn't noticed it was gone. The appeals court faulted Amezquita's trial attorney for not raising the issue.

"While there is no direct evidence that Guerrero was the attacker, the circumstantial evidence supports such a conclusion," the appeals court wrote in its 5-4 ruling.

According to testimony from the trial, Guerrero argued around the day of the attack with Bingham's brother about Guerrero's alleged harassment of her. But Bingham also had a heated argument with Amezquita about the same time.

Harris County Assistant District Attorney Baldwin Chin said prosecutors will meet next week to decide whether to release Amezquita or retry the case. Moore said his client could be released on bail as early as next week.

"This is the best present I've ever gotten," Moore said of the ruling.

Amezquita's case languished in the appeals court for five years, said Steve Hall, director of the criminal justice reform group StandDown Texas Project. That included an unusual sequence last year when the court rejected Amezquita's appeal but decided to reconsider it two weeks later.

Before the trial, state District Judge Belinda Hill refused to allow the testing of DNA evidence from fingernail scrapings, which have since been destroyed.

Moore said in 2003 that the Amezquita case was one where "everything that could have gone wrong ... did go wrong."

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