Claude “Butch” Jones’ last request before his execution just before Christmas 10 years ago was an emotional telephone call to his son in Houston who had never known his father until they were reunited on death row.

The son, Duane Jones, now 49, remembers pointedly asking his father whether he had robbed and murdered the liquor store owner in San Jacinto County.

“I told him he had nothing to lose by telling the truth now,” Duane Jones said. “But my father continued to remain adamant that he didn’t do it.”

While the younger Jones, an associate engineer, thought his father was being truthful, he could never be certain — but now that may change.

Visiting Judge Paul C. Murphy this week ordered testing of a strand of hair from Claude Jones’ case that death penalty opponents believe might provide the first DNA proof that an innocent man was executed.

Murphy issued a summary judgment in favor of the New York-based Innocence Project and The Texas Observer, an Austin newsmagazine, which three years ago petitioned to do mitochondrial DNA testing on a hair fragment recovered from the counter of Zell’s liquor store in Point Blank, about 65 miles north of Houston.

San Jacinto District Attorney Bill Burnett, who had assisted in the prosecution and died this month from pancreatic cancer, blocked the hair’s release. He argued state law provided no legal avenue for him to relinquish the 1-inch strand after Claude Jones’ death.

Neither Burnett’s attorney, David Walker, nor the first assistant, Jonathan Petix, who has temporarily replaced Burnett, could be reached for comment on whether they will appeal.

Meanwhile, the younger Jones remains guardedly optimistic.

“It would mean a lot to me to know the truth, but it is really more important or paramount that the justice system know the truth,” he said. “If our state is going to be the execution capital of the free world, then it needs to be above reproach.”

In 2000, Claude Jones was the 40th and last person executed in Texas that year, which set a national record.

Duane Jones’ does not see himself as a so-called bleeding-heart liberal opposed to the death penalty, as his own family knows what it’s like to be a crime victim. He survived a bullet to the back of his head during a robbery in 1986, and his wife was the target of a home invasion just two months ago.

When a deputy sheriff located him and told him his father, a career criminal he thought was dead, was alive on death row and wanted to see him, he felt conflicted but decided to see his father.

Duane Jones visited him a half dozen times before the execution, during which he exchanged commissary money for his father’s ink drawings depicting his Indian heritage.

During the visits, his father admitted to a sordid past as an alcoholic and drug user. From age 19 until his execution at age 60, he’d spent most of his life behind bars. He had a previous murder conviction, in which he poured gasoline on an inmate and then set him on fire.

But he persistently denied killing the liquor store owner, Allen Hilzendager, who was shot once in the back and then twice more when he turned around.

Similar characteristics

The hair fragment, left in the evidence room since his 1989 trial, was the only physical evidence connecting Claude Jones to the crime scene. A Texas Department of Public Safety expert could testify then only that a cursory microscope examination indicated the strand “matched” the suspect’s hair. The expert could not exclude many others whose hair could have the same characteristics.

The DNA testing being proposed now had not been developed before the trial.

Barry Scheck, Innocence Project’s co-director, said the DNA testing could do one of three things:

• It could prove Claude Jones guilt if he’s a match, similar to the post-execution DNA testing done on the 1981 rape-murder case involving the Virginia coal miner Roger Coleman.

• It could exonerate him if the hair matches his co-defendant, Kerry Dixon Jr., who was supposed to have remained in the get-away truck while the elder Jones entered the liquor store.

• If the hair matches neither of them, then the state did not have sufficient evidence to prove Claude Jones’ guilt, Scheck said.

A key witness during the trial, Timothy Jordan, has recently recanted his testimony that Claude Jones had confessed being the triggerman to him. Jordan now says Dixon told him that Claude Jones did it. Dixon, who has made no police statements, is currently serving a life sentence for his part.

Test called propaganda

But Walker has contended DNA testing cannot provide conclusive proof of Claude Jones’ innocence, only propaganda for those opposing the death penalty. He notes two other witnesses described seeing a pot-bellied, middle-aged man wearing clothing like Claude Jones’ enter the store, although neither could positively identify him.

Petix has also said releasing the hair could open a “floodgate” of requests for things such as O.J. Simpson’s gloves. They contended state law only allows a defendant to request DNA testing.

Their opponents, however, believe the court saw “grim irony” in the fact that Claude Jones’ execution prevents him from making the request.

cindy.horswell@chron.com