Texas Attorney General

Media Advisory: Michael Yowell scheduled for execution

October 2, 2013

AUSTIN – Pursuant to a court order by the 140th District Court of Lubbock County, Texas, Michael John Yowell is scheduled for execution after 6 p.m. on Wednesday, Oct. 9, 2013.

On Oct. 4, 1999, a Lubbock County jury convicted Yowell of the capital murder of his parents, Johnny and Carol Yowell. Following two days of punishment phase proceedings, on Oct. 6, 1999, the convicting court sentenced Yowell to death.

FACTS OF THE CRIME

The United States Court of Appeals for the Fifth Circuit described the murders of Johnny and Carol Yowell as follows:

In 1998, Yowell shot and killed his father, strangled his mother, and opened a natural gas line in the kitchen. When his grandmother, who was living in his parents’ house at the time, opened her bedroom door, it caused the gas to combust, fatally injuring his grandmother and charring the remains of his parents. Two days later, Yowell confessed to shooting his father, who had caught Yowell trying to steal his wallet to buy drugs, and to struggling with his mother before bludgeoning her and strangling her. Yowell said that afterwards, in a panic, he ran to the kitchen and opened a gas jet.

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment.

During the punishment phase of Yowell’s capital murder trial, the prosecution presented evidence establishing Yowell’s felony convictions for burglary of a building and possession of a controlled substance. Yowell’s probation officer testified that Yowell was released from prison to a halfway house, had attempted various programs over the years for drug treatment and mental disorders, and had been recently reported to be in violation of the terms of his parole based on new offenses in March 1998 (two months before the capital offense) including forgery, stolen checks, and illegal use of credit cards.

The jurors also learned that Yowell, a convicted felon, had used his mother’s credit card to purchase prohibited firearms from three different stores and falsified information in order to purchase or pawn the weapons. Finally, five days before the capital crime, Yowell signed a statement admitting that he stole from his mother by forging checks and illegally used her credit cards.

PROCEDURAL HISTORY

On July 23, 1998, a Lubbock County grand jury indicted Yowell for the May 9, 1998, Mother's Day weekend capital murder of Johnny and Carol Yowell. Yowell was also charged with the felony murder of his grandmother, Viola Davis.

On Oct. 4, 1999, a Lubbock County jury convicted Yowell of capital murder for having intentionally and knowingly shot his father to death during the same criminal episode in which he strangled his mother with an electrical cord.

Following a separate punishment hearing, on Oct. 6, 1999, the jury answered affirmatively the special sentencing issue on future dangerousness and answered negatively the issue on mitigation. In accordance with the jury’s answers, the trial court sentenced Yowell to death.

On Feb. 13, 2002, the Texas Court of Criminal Appeals affirmed Yowell’s conviction and sentence on direct appeal.

On July 25, 2001, Yowell filed a state habeas corpus application raising 10 claims.

On March 13, 2005, the trial court commenced an evidentiary hearing on Yowell’s claims.

On Nov. 22, 2006, the Texas Court of Criminal Appeals adopted the trial court's findings of fact and conclusions of law and denied habeas corpus relief.

On Sept. 10, 2007, Yowell filed a federal habeas petition raising many of the same arguments as in his state habeas proceedings.

On Aug. 26, 2010, the U.S. District Court for the Northern District of Texas conditionally granted punishment-phase relief for a claim of ineffective assistance of counsel, declined to rule on two claims, and denied the remaining claims for lack of merit. Final judgment was issued the same day vacating Yowell’s sentence and remanding for re-sentencing or imposition of a life sentence.

On Sept. 12, 2011, the United States Court of Appeals for the Fifth Circuit reversed the grant of habeas corpus relief and remanded the case for consideration of the two pretermitted claims.

On remand, on Oct. 3, 2012, the federal district court denied both claims on the merits, dismissed Yowell’s habeas petition with prejudice, denied Yowell a certificate of appealability (COA), and entered final judgment.

On April 16, 2013, the Fifth Circuit court denied Yowell a certificate of appealability.

On June 3, 2013, the 140th District Court of Lubbock County, Texas, set Yowell’s execution for
Wednesday, Oct. 9, 2013.

On July 12, 2013, Yowell petitioned the U.S. Supreme Court for certiorari review and applied for a stay of execution.

On October 1, 2013, attorneys for Michael Yowell, and two other death row inmates, Thomas Whitaker and Perry Williams, filed a class action lawsuit in Houston U.S. district court, challenging the constitutionality of Texas' execution protocol.

On October 5, 2013, a U.S. Houston U.S. district court denied Yowells' request for injunctive relief and emergency request for stay of execution.

On October 7, 2013, the U.S. Supreme Court denied Yowell's petition for certiorari review.

On October 7, 2013, Yowell Yowell filed notice appealing the Houston U.S. district court’s order denying injunctive relief.

On Oct. 8, 2013, Yowell filed an appeal in the United States Court of Appeals for the Fifth Circuit, asking that his execution be stayed pending adjudication of the means the state plans to use to carry out his execution.

On Oct. 8, 2013,the Fifth Circuit court affirmed the federal district court’s denial of injunctive relief and denied Yowell’s motion for stay of execution.

On Oct. 9, 2013, Yowell petitioned the Fifth Circuit court for certiorari review and a stay of execution.

Yowell tells executioner: 'Punch the button'

Lubbock man convicted of murdering his parents executed Wednesday in Huntsville

By Walt Nett - LubbickOnline.com

October 9, 2013

HUNTSVILLE — Michael Yowell, who killed his parents more than 15 years ago while trying to steal money from his father to buy drugs, died by lethal injection at 7:11 p.m., Wednesday, Oct. 9.

He made a brief last statement: “I love you. To Gerald, you’re a zero. I love you Mandy; Tiffany, I love you, too.”

He paused for a moment, then said: “Punch the button. We are ready.”

Yowell, 43, was the 14th inmate the state of Texas has executed this year, and the second from Lubbock County.

Mandy and Tiffany referred to his daughters, who attended the execution.

Gerald may have been in reference to a witness, Gerald Harder, who attended the execution with the daughters and Yowell’s ex-wife, Amanda Weathers.

Yowell was taken from a holding cell at 6:42 p.m., shortly after the U.S. Supreme Court rejected one final attempt to block the execution pending the outcome of a lawsuit filed last week challenging the state prison system’s use of the drug pentobarbital obtained from a compounding pharmacy.

Yowell and two other prisoners argued use of the sedative could cause unconstitutional pain and suffering because the drug, replacing a similar inventory that expired at the end of September, was made by a compounding pharmacy not subjected to strict federal scrutiny.

Texas, like other death penalty states, has turned to compounding pharmacies that custom-make drugs for customers after traditional suppliers declined to sell to prison agencies or bowed to pressure from execution opponents.

The lethal dose of pentobarbital, also known as Nembutal, was injected into the intravenous catheters at 6:52 p.m.

Shortly after that, Yowell appeared to struggle for breath several times before settling into sleep, inhaling and snoring eight times before his audible breathing stopped.

Yowell, 43, became pale.

A prison physician checked for pulse and breathing and made the pronouncement of death.

Yowell’s reaction to the drug was similar to the 23 other Texas inmates put to death since last year when the state began using pentobarbital as the lone lethal drug for executions.

Yowell’s lawyers said the execution was a disappointment and characterized the use of compounded drugs as “a dramatic change from prior practice — making the need for oversight, now and in the future — that much more important.”

“Surely this is not the way we want our government to carry out its most solemn duty,” Maurie Levin and Bobbie Stratton said in a statement.

Yowell was convicted in 1999 of killing his parents, John and Carol Yowell.

No witnesses attended on their behalf.

He told investigators he initially planned to take a few cigarettes when he entered his parents’ bedroom early on the morning of May 9, 1998 — the day before Mother’s Day. He shot his father in the head, then beat his mother before strangling her with a lamp cord.

Yowell already was on probation for burglary and drug convictions. He was arrested on federal firearms charges and charged with his parents’ slayings after authorities determined his mother had been beaten and strangled and his father was shot.

“At some point he’s looking his mom in the face, beating her and wrapping a lamp cord around her neck,” Lubbock County District Attorney Matt Powell, who prosecuted the case, recalled Tuesday. “I think always there are some unanswered questions. You want to know how somebody is capable of doing that to their parents.”

Evidence showed Yowell had a $200-a-day drug habit he supported by stealing. Evidence also showed he burned some of his bloody clothes and hid a blood-stained jacket and the murder weapon in the crawl space of a friend’s house. Defense attorneys unsuccessfully tried to show Yowell was insane.

After murdering his parents, Yowell then shut his grandmother, Viola Davis, in her bedroom before going to the kitchen and opening a gas jet. The house later exploded, and Davis was fatally injured, dying 12 days later of burns and complications from smoke inhalation.

The execution drew national attention because of the lawsuit over buying pentobarbital from a compounding pharmacy.

Compounding pharmacies are not regulated by the federal Food and Drug Administration, a situation that has prompted concerns about the possibility the drugs might be less effective.

Texas and other states that use pentobarbital as the execution drug have looked for other sources after the drug’s Danish manufacturer ceased selling it to U.S. prisons for use as an execution drug.

According to a death watch timetable distributed by the Texas Department of Criminal Justice, Yowell spent his final days talking with friends, his ex-wife and his daughters.

His breakfast, served shortly after 3 a.m., was fried eggs, country gravy, cereal and applesauce. He took photographs with his daughters and friends who visited in the morning.

Yowell execution set for Wednesday, but appeals, execution drug issues pending

Condemned to death for killing parents in 1998

By Walt Nett - LubbockOnline.com

October 5, 2013

Looming legal issues could derail the scheduled execution this week of a Lubbock man convicted in the murder of his parents 15 years ago.

Michael John Yowell is scheduled to die Wednesday night, Oct. 9, by lethal injection at the state prison in Huntsville.

Between now and then, however, two legal issues remain unresolved.

• Yowell’s final appeal is pending before the U.S. Supreme Court, which begins its 2013 term Monday, Oct, 7. It was one of 63 death sentence appeals before the court when it met last week to weigh more than 1,000 applications for review. The court is scheduled to release a list of orders — identifying which cases will be heard and which are rejected — when it convenes.

• Still other lawyers have asked a federal judge in Houston for an injunction to halt Yowell’s execution because the Texas Department of Criminal Justice plans to use pentobarbitol made at a compounding pharmacy. The state sought a different source for the drug, also known as Nembutal, after the drug’s Danish manufacturer refused to sell it to prisons that are using it as their execution drug. One argument being offered is because the federal Food and Drug Administration doesn’t regulate compounding pharmacies, the agency takes no position on the safety of those drugs that are produced.

Either case could set aside, even temporarily, Yowell’s appointment to become the 506th inmate executed in Texas since the death penalty was ruled constitutional in 1982.

Yowell’s would be the 13th execution this year at “The Walls,” as the Huntsville prison that houses the death chamber is known, and the second from Lubbock County after a four-year hiatus.

And a long time removed from a Saturday morning more than 15 years ago.

‘Like a war zone’

There is only space — dead grass and a large, lonely tree, a curb cut and a driveway apron to nothing — where a house once stood at 2114 39th St. in the Clapp Park neighborhood.

It was Viola Davis’ house, and the house where John and Carol Yowell died by their younger son’s hand sometime before 7:45 a.m. May 9, 1998.

The day before Mother’s Day.

The explosion that sundered the Saturday morning calm was probably the first indication of something horribly wrong in the house.

One wall was blown out, and the other walls and roof buckled from the blast.

Two neighbors charged into the rubble and pulled Davis out, according to media accounts at the time. She would die a dozen days later in a hospital from burns and injuries in the blast.

Two other bodies, burned beyond recognition, were removed from the ruins — John Yowell’s body so badly burned that, according to reports in the Avalanche-Journal, his gender wasn’t readily apparent.

Police weren’t sure who they were at that point, but neighbors insisted the pair were John and Carol Yowell.

John was 55 years old, his wife, two years younger.

An autopsy would find a bullet wound in John Yowell’s head. Carol Yowell’s body was found face down, a lamp cord around her neck and the lamp on her back.

When Michael John Yowell, then 28 years old, went on trial in September 1999 for the double murder, prosecutor Matt Powell told the jury that 2114 39th St. “looked like a war zone.”

On May 9, 1998, however, Lubbock police considered Michael Yowell what they call today “a person of interest.

A Lubbock police sergeant would only say at the time police were looking for an unnamed relative to ask him questions, and to tell him about the explosion — if he didn’t already know.

Two days later, Yowell approached police at the wrecked house, and he was arrested on a federal warrant on a charge of being a felon in possession of a firearm.

He confessed, telling a Lubbock detective and a federal agent he initially entered his parents’ bedroom to get some cigarettes.

Then he saw his father’s wallet on the bed and tried to grab it, he told Detective Roy Pierce and Felix Garcia of the federal Bureau of Alcohol, Firearms and Tobacco.

He said his mother woke up, apparently startled, and grabbed his arm. The gun he had in his pocket went off, and the bullet struck his father.

Later Powell, who prosecuted the case with the late Rusty Ladd, would argue to the jury that Yowell really intended to shoot them both, but the handgun malfunctioned.

He told the investigator he didn’t remember what he did to his mother, but he heard her gurgle and then become quiet.

According to his taped confession, he got his coat, closed his grandmother’s bedroom door and opened a natural gas jet in the kitchen.

Two-week trial

Jury selection began with 120 people in mid-August, and testimony began some six weeks later in District Judge Jim Bob Darnell’s court.

The two-week trial had several unusual turns as prosecutors depicted Yowell as an evil person, while his defense attorney, Jack Stoffregen, tried to press an insanity defense based on Yowell’s history of drug abuse and treatment for mental disorders.

His drug addiction, Stoffregen argued, rendered Yowell incapable of working out moral and ethical questions.

And Stoffregen also put on testimony — Yowell’s mental health records from Lubbock MHMR — indicating he was also suicidal and homicidal.

In closing arguments, however, Powell attacked the insanity defense as another manipulation by Yowell.

Stoffregen’s strategy defense had another issue — one that would surface in post-conviction reviews.

Darnell refused to let the defense’s intended witness, psychologist Philip Davis, testify as an expert witness because Davis had not examined Yowell.

According to court records, Stoffregen said the defense did not let Davis examine Yowell so the prosecution’s experts wouldn’t be able to examine him either.

Darnell allowed Davis to read Yowell’s mental health history into the trial record, but without offering any kind of analysis or discussion.

And that would provide Yowell with a glimmer of hope on appeals years later.

But not then. After the seven-man, five-woman jury took 45 minutes to come back with a guilty verdict, Yowell told his defense team to not put on a case during the punishment phase of the trial.

He even debated the point with Darnell, asking the judge to keep Stoffregen from playing the tape recording of his confession as part of his closing argument.

Darnell refused, telling Yowell his attorneys “will make the decision how to proceed, whether you like it or not.”

Yowell replied: “It’s my life, and I should be making the decisions.”

Stoffregen played the tape, and finished by telling the jury he believed the confession reflected remorse, enough remorse that he asked the jury to “step back from the death penalty.”

The jury took two-and-a half hours to come back with a death sentence.

On appeal

Yowell’s arguments were rejected by the state Court of Criminal Appeals on direct appeal, and by Darnell again in his state habeas corpus petition.

U.S. District Judge Sam R. Cummings, however, granted Yowell a reprieve. He ruled in 2010 that Yowell had received ineffective assistance of counsel, and criticized Darnell for excluding Davis’ expert testimony in the case.

Cummings wrote: “The evidence in the records of childhood abuse and neglect, sexual abuse, an alcoholic father and brother, and exposure to drugs at an early age, as well as Yowell’s extensive history of ongoing mental illness and drug abuse, is exactly the kind of evidence that is relevant to mitigation.”

On appeal, Yowell’s attorneys argued the mental health evidence offered in the guilt phase should have been presented again in the punishment phase.

The Fifth Circuit Court of Appeals disagreed, saying it would be reasonable to expect a jury to remember that evidence from the guilt phase to the punishment phase, and noted Stoffregen had said the decision to not have Davis examine Yowell was a strategic choice.

Jury chooses death for Yowell

29-year-old faces execution for killing parents

By Elizaabeth Langton - LubbockOnline.com


Thursday, October 07, 1999

A jury ordered Wednesday that Michael Yowell be executed for murdering his parents during a desperate attempt to steal money for drugs and blowing up their home to conceal the crimes.

The seven-man, five-woman jury deliberated 21/2 hours before choosing the death penalty over a life prison term. The same jury took about 45 minutes Monday to convict Yowell, 29, of capital murder.

Yowell stoically accepted his sentence. Defense attorney Jack Stoffregen said his client had resigned himself to the outcome.

''He was expecting it,'' Stoffregen said. ''And as you heard yesterday, that's really kind of what he wanted.''

On Tuesday, Yowell asked 140th District Judge Jim Bob Darnell to block Stoffregen's de-fense plan, which involved re-playing Yowell's taped confession.

''Having them hear that again is not going to help me in any way,'' Yowell told the judge. ''It's my life.''

While waiting for the jury, Yowell chatted with family members and appeared unaffected by the proceedings. He stared straight ahead, barely glancing toward the jury throughout the trial.

Yowell offered no comment after the verdict. He could be transferred to death row within 30 days.

After a 24-hour drug binge, Yowell shot his father and strangled his mother while trying to steal money from them on May 9, 1998. John Yowell, 55, and Carol Yowell, 53, were found dead amid the rubble of their charred home after an early morning explosion.

Carol Yowell's mother, 89-year-old Viola Davis, survived the fire but later died.

Family members who attended the trial declined to speak with reporters.

''I think there were mixed emotions among the family,'' prosecutor Matt Powell said. ''But they have supported us from start to finish.''

Although pleased with the jury's decision, Powell feels saddened by the case, he said.

''We feel that was justice, but it was nothing to be happy about,'' he said.

Criminal District Attorney Bill Sowder said the extreme nature of the case led prosecutors to seek the death penalty.

''We don't pursue it on every case that's available; we really look hard at the case and the background,'' he said. ''The effort was to see that justice was done. We're not about ... going after the death penalty without good reason.''

Prosecutor Rusty Ladd said, ''The evidence in this case demanded that we seek the death penalty.''

Yowell drifted in and out of drug dependency for at least 10 years. He stole from his parents and grandmother to support his $200-a-day habit.

In the two months before the murders, Yowell stole his father's wallet, cashed forged checks on his grandmother's bank account and purchased three guns with his mother's credit card, according to court testimony.

Yowell went to prison for three months in 1989 for a burglary conviction and received probation for a drug possession charge. Three days before killing his parents, Yowell learned that his probation officer was reporting him for violations and that he likely would return to prison.

When arguing for the death sentence, Powell told the jury that Yowell blamed his parents for his problems.

Yowell reportedly told a friend, ''All of my problems would be solved if I just blew up my parents,'' Powell said.

The defense argued that long-term mental illness and drug addiction rendered Yowell unable to determine right from wrong.

As his parents slept, Yowell shot his father in the head and planned to shoot his mother, Powell said. But the gun would not fire again, and a violent struggle ensued between mother and son.

Yowell struck his mother in the head with a soft drink can and attacked her with a knife. He eventually wrapped a lamp cord around her neck and strangled her for at least five minutes.

Crime scene photos show the lamp resting on the back of Carol Yowell's charred body.

''Most people look at that picture and they turn away; it's a horrible thing,'' Powell told the jury during sentencing arguments. ''Can you imagine living through it and dying through it?''

After killing his parents, Yowell opened a natural gas valve, shut his grandmother's bedroom door and left the house.

When neighbors heard the explosion, they rescued Davis from her burning bedroom. She slowly suffocated over the next two weeks from internal burn injuries, prosecutors said.

Yowell faces a pending murder charge for his grandmother's death, which the CDA's office probably will not prosecute, Sowder said.

Both prosecutors and defense attorneys expressed optimism about their fates in the appeals process.

For Yowell to receive the death penalty, prosecutors had to prove two issues that he would continue to commit acts of violence in prison and that no mitigating circumstances existed that made the death sentence inappropriate.

Lubbock man found guilty in parents' murders

The Associated Press

Tuesday, October 5, 1999

LUBBOCK (AP) - It took a jury less than an hour Monday to convict a 29-year-old man of killing his parents.

A defense attorney said Michael Yowell was insane when he shot his father in the head, strangled his mother with a lamp cord and blew up the family home.

Jurors didn't believe the argument. They will decide today whether Yowell should spend life in prison or receive lethal injection for the May 1998 slayings.

The charred corpses of John Yowell, 55, and Carol Yowell, 53, were strewn amid the rubble of their home after an early morning explosion.

Carol Yowell's mother, 89-year-old Viola Davis, also was in the house when her grandson opened a gas valve and took off into the night. The elderly woman died two weeks later of burns and smoke inhalation.

Yowell has been charged with her murder but that case has not gone to trial.

Prosecutor Matt Powell said Yowell planned to shoot his parents, but his gun broke during the confrontation.

Instead, Yowell attacked his mother with a knife, then wrapped a lamp cord around her neck and strangled her for at least five minutes, Powell said.

Yowell was an alcoholic and a junkie desperate for drug money at the time of the slayings, defense lawyer Jack Stoffregen told the courtroom. Stoffregen argued that Yowell was incapable of sorting out moral or ethical questions because of his drug addiction.

For seven years before the slayings, Yowell bounced between rehabilitation and mental programs.

But the prosecution labeled him a mass murderer and urged a no-mercy approach.

"Another manipulation, another lie by Michael Yowell," Powell said. "You think he didn't know he was doing something wrong?"

Lubbock couple found dead after house explosion; police searching for man

By Mark Babineck / Associated Press Writer

Sunday, May 10, 1998

LUBBOCK, Texas (AP) -- Authorities found a couple's badly burned remains Saturday after part of their home was obliterated in a suspicious early-morning explosion. Police are seeking one man for questioning.

Autopsies will be performed Monday on the victims, whom neighbors identified as the home's residents, Johnny and Carol Yowell. But police Sgt. John Gomez declined to name them because relatives hadn't been notified.

The couple were burned beyond recognition after a blast that appeared to occur near their bedroom blew out the walls around 7:45 a.m.

"There's some suspicion surrounding their cause of death," Gomez said. "Hopefully, the autopsy will provide more information."

He said authorities are searching for a relative whom neighbors identified as Michael Yowell. Gomez said they sought him simply to ask him questions and to inform him of the explosion if he wasn't aware of it yet.

Gomez did not name Yowell a suspect in the blast, which also injured his 89-year-old grandmother, Viola Davis. Ms. Davis was in stable condition Saturday night at University Medical Center in Lubbock.

The cause of the explosion was under investigation by city fire marshals, Gomez said.

"It may take several days or weeks before we find what the cause was," he said. "They will do tests to see if there was some type of accelerant."

After hearing the explosion, which left other walls in the house buckled, the roof badly sagging and windows next door blown in, neighbors Charles McMillan and Greg Songer raced into the rubble and rescued Ms. Davis.

"Anytime you lose a friend, it doesn't have to be kinfolk, it hurts," McMillan, a next-door neighbor who described himself as close to the Yowells, told the Lubbock Avalanche-Journal. "But they were like kinfolk, they were neighbors. We saw them all the time."