'Escaped' Hays County inmate's attorney speaks out; escape charge dropped

HAYS COUNTY, Texas - After law enforcement believed an inmate escaped from the Hays County Jail, prosecutors are now dropping the escape charge.

It sounded like a straightforward escape case of an inmate that had walked out of jail by impersonating another inmate.

But the defense tells a very different story.

The backstory:

On July 18th, the Hays County Sheriff’s Office said 21-year-old Xavier Gutierrez escaped from custody.

Police said he posed as another inmate with a similar first name, Zavier Aldaco, who was scheduled to be released.

At the time, the sheriff’s office said Gutierrez was being held in connection to a felony theft case, as well as an evading arrest warrant. Once the mix-up was discovered, an escape warrant was issued.

The Hays County Sheriff’s Office's Organized Crime Fugitive Unit arrested Gutierrez in Guadalupe County on July 22nd without incident.

What they're saying:

Gutierrez’s attorney, Chevo Pastrano, says that’s not what happened.

"The lingo that's used at the jail is ATW, you're going ATW which means all the way, all the way out, and Xavier questions that, are you sure it's me? And the officer says, yeah, it's you. And so just, you know, here's stuff, sign here. It was a pad. And so had him sign the electronic pad; it wasn't an actual document that he was signing," said Pastrano.

"He was here for a birthday of one of his friends, and so he went back to that friend's house and was there for a couple of days until they issued an escape warrant, and then they went back and got him right where we came from. He didn't, wasn't like he was a Bonnie and Clyde type. Run," said Pastrano. 

His attorney argues the escape charge shifted attention away from what he calls systemic, procedural failures of colossal proportions by the Hays County Jail.

He also points to differences between the two inmates, Gutierrez and Aldaco, the inmate authorities say Gutierrez impersonated.

"They look nothing alike. If you take the descriptions of them, like you're literally talking about two totally different size guys. One's six feet, 250 pounds. The other guy's five, eight, 200 pounds. One has brown hair; one has black hair," said Pastrano.

"There's a lot of safeguards that jails employ to make sure that their systems are functioning. But like anything, uh, it's only as good as the people using it," said Pastrano.

What's next:

The Hays County Sheriff’s Office says it's conducting a thorough review of the incident.

The agency says it remains committed to identifying necessary improvements to its procedures and safeguards to help prevent a similar incident from happening again.

Pastrano says Thursday the Hays County District Attorney's Office declined to prosecute Gutierrez on the escape charge. Instead, he agreed to plead ‘no contest’ to the misdemeanor evading arrest charge.

Gutierrez is expected to be sentenced to the time he has already served in the Hays County Jail on that charge.

We reached out to the Hays County Sheriff’s Office Thursday for comment but have not heard back.

Crime and Public SafetyHays County