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defendants who said Jones was the killer. The co-defendants escaped death sentences. Hilzendager, the 44-year-old owner of Zell’s liquor store on state Highway 150 near Lake Livingston, was shot three times with a .357-caliber magnum. Jones, whose criminal record included prison stints in Texas and Kansas for robbery, burglary, theft, assault, and murder, had recently been released on parole. He was in the area hanging around with two other men, Kerry Dixon and Timothy Mark Jordan, the alleged owner of the gun used to kill Hilzendager. Witnesses agreed that in the early evening of November 14, 1989, two men in a pickup truck similar to Dixon’s pulled up at the liquor store. One man went inside, three shots were fired, and the men drove away. Descriptions of the men varied, and neither of the two eyewitnesses who were across the highway at the time was able to positively identify the man who entered the store. When picked up by police, Dixon and Jordan both told police Jones was the killer. Jones was arrested on a bank robbery charge in early December in Florida and sent back to Texas. All three men were charged with capital murder. Dixon received a 60-year sentence. Jordan agreed to a 10-year sentence in a plea bargain. At Jones’ trial, a hair found on the liquor-store counter proved crucial to the prosecution. Stephen Robertson, a DPS forensics expert, testified that the hair was a potential match to Jones, but said, “Technology has not advanced where we can tell you that this hair came from that person. Can’t do that. We can tell you that this hair matches this person in all characteristics and could be his.” The Court of Criminal Appeals upheld Jones’ conviction in 1994 in a sharply divided 3-2 ruling. Both sides placed great weight on the hair, but reached different conclusions. The three-judge majority upheld the conviction partly because Jones “was the only person with access to the pistol whose hair sample matched the one discovered at the murder scene.” Two dissenting judges said Robertson’s analysis of the hair was “insufficient” to connect Jones to the murder, and criticized the majority for “carelessly reading the record or deliberately mischaracterizing the record.” Shortly before his execution, Jones filed an appeal seeking DNA testing of the hair using methods not available at the time of his trial. Coker rejected the request, ruling that Jones had used up his chances to appeal his conviction. The Court of Criminal Appeals also rejected the last-minute plea for DNA testing. The day he was set to die, Jones appealed to Bush for a 30day stay of execution to buy time for DNA testing. Typically in death penalty cases, the governor’s office of general counsel prepares a memo summarizing the appeal and making a recommendation as to whether the governor should grant a stay. In Jones’s case, the four-page staff memo provided to Bush made no mention of the possibility that DNA testing might shed light on Jones’ guilt. Instead, it summarized the prosecution’s case and recommended that Bush reject the request. SEPTEMBER 21, 2007 THE TEXAS OBSERVER 15