Killer of elderly woman paroled based on old law

Jessica Priest By Jessica Priest

Oct. 29, 2012 at 5:29 a.m.
Updated Oct. 30, 2012 at 5:30 a.m.

When a jury found Bennie Ray Dupnik Jr. guilty of capital murder in 1979, they didn't have the option to sentence the 16-year-old to life in prison without the possibility of parole.

That's because a law establishing the life without parole sentence for capital murder cases didn't exist until 2005.

The Texas Board of Pardons and Paroles granted Dupnik, who was handed a life sentence, parole on his sixth attempt at freedom in 2010, after serving 31 years in prison.

As the law was written in 1979, Dupnik was eligible for parole after serving 20 years for beating Gladys "Shorty" Fowler to death during a robbery.

Those found guilty of capital murder from 1993-2005 have to serve 40 years in prison before becoming eligible for parole.

Sen. Eddie Lucio Jr., D-Brownsville, authored Senate Bill 60, which was passed in 2005 and gave Texas jurors a third sentencing option. It says two things. First, if a person is found guilty of a capital offense in a trial where the state is seeking the death penalty, he or she must either get life without the possibility of parole or death.

Second, if a person is found guilty of a capital offense and the state is not seeking the death penalty, a jury can consider life with the possibility of parole and life without the possibility of parole.

Dupnik would not have been eligible for death penalty because he was under the age of 18 at the time.

Lucio was not available for comment, but his press secretary Louie Sanchez said via email that the prevention of such heinous acts against humanity was an intended consequence of Senate Bill 60's passage.

Dupnik, who was 51, and his girlfriend Sandra Rivera, who was 44, were found dead in their Victoria apartment at the 300 block of Grant Street on Saturday.

Victoria Police Sgt. Eline Moya confirmed Monday the deaths look like a murder-suicide but are still under investigation.

Justice of the Peace of Precinct 1 Richard Castillo said a preliminary autopsy report conducted by the Travis County Medical Examiner's Office said Rivera died of "multiple sharp force injuries" and ruled the manner of her death a homicide. Dupnik's preliminary autopsy report was not available yet.

Rivera's neighbors and family members wondered aloud this past weekend whether she would've died had Dupnik not been released in 2010.

Harry Battson, public information officer for the Texas Board and Pardons and Paroles, said its seven members, who are appointed for six-year terms by the governor, cast about 100,000 votes approving or denying parole in the last year. The vote comes after reviewing information compiled by parole officers and interviewing the victims' families should they request it.

That's about 8,500 votes a month, he said. In addition, the group is required to vote on 30,000 parole revocations a year.

He said the board considers both dynamic and static factors. A static factor would be unchangeable, like Dupnik's past criminal history.

A dynamic factor would be if the offender had enrolled in any vocational classes while in prison or their current age.

"Statistically, it has been shown that as offenders age the likelihood of recidivism decreases, particularly for those over age 45," Battson said.

He was unable to point to which study supported this, but said JFA, a consulting company, recently evaluated and approved the criteria the board votes on.

He said the board never meets to discuss a case, but instead studies the eligible offender's file. Board members then cast their vote alone and forward the file onto the next board member in line.

Battson said it's done that way to handle the workload.

He wasn't sure how long the process has been in practice.

"The Board of Pardons and Paroles was established in the 1930s. So what they did in the 1930s, 1940s and 1950s, I have no idea," Battson said.

Dupnik's case would have required a two-thirds vote, according to the 1995 Senate Bill 45, because it was a violent offense.

Paddy Burwell, of Westhoff, remembers the Texas Board of Pardons and Paroles' workload all too well.

The retired Exxon-Mobile worker, who managed anywhere from 40-50 employees throughout his 35-year tenure, was appointed to the board by then-Governor George W. Bush in 1999.

He said his lack of criminal justice expertise did not get in his way but enabled him to be open-minded.

"What I did (at Exxon-Mobile) is I gathered information and made decisions based upon the information I had at the time," which is essentially what the board does daily, Burwell said.

He estimated that about 190 cases - ranging in size from 20-pages to a binder full of letters in support and opposition - crossed his desk each week.

He often studied them at home, and, when confused about a particular point in the file, scheduled interviews with inmates to clear the air.

Burwell doesn't remember it, but he voted in 2000 and in 2002 against Dupnik's release, citing "criminal history" and "nature of the offense" as reasons counting against Dupnik, according to parole records.

He said the six instances in which he voted in favor of releasing someone, only to have it backfire, undoubtedly weighed heavily on him. In those cases, he said, a non-violent offender, such as a bank robber, committed a crime again, this time, shedding someone else's blood in the process.

He insisted the board members he worked with didn't have a blase attitude about the responsibility.

"I still believe that I never cast a vote that I wasn't reasonably comfortable with," Burwell said. "But I was smart enough to realize after a while that you can't make 190 decisions every damn week and never make a mistake. It's not logical. It's dumb if you think that. So I just tried not to make mistakes that would cost people their lives."

He said he was told offenders found guilty of capital felonies were prime candidates for parole because their's was usually a crime of passion.

Board members voted 7-0 in 2010 to "release Dupnik when eligible and processed" under the special conditions that he reimburse the state for secondary education, maintain no gang affiliation, be under "super-intensive supervised parole" or wear an ankle monitoring device at least for the first year and be gainfully employed.

His employment records are not subject to the Texas Open Records Act, said Jason Clark, a public information officer with the Texas Department of Criminal Justice.

Clark said Dupnik had to check in with the Victoria parole office once a month, and a parole officer was required to visit him at his home once a month.

Cases reviewed

  • From Jan. 1, 1978, to Dec. 31, 1993, TDCJ received 515 offenders for capital murder. TDCJ's computer system came online in 1994; therefore, only the offenders who were currently on hand or on parole are included in this number.
  • From Jan. 1, 1994, to Dec. 31, 2005, TDCJ had 1,965 offenders found guilty of capital murder on the books.
  • From Jan. 1, 2006, to present, TDCJ recorded housing 715 offenders found guilty of capital murder.



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