DALLAS CRIMINAL LAWYERS.: FEDERAL, STATE & APPEALS - BRODEN & MICKELSEN LLP

Texas Halts Execution of Nicaraguan Illegal Immigrant Convicted of Murder

Texas Halts Execution of Nicaraguan Illegal Immigrant Convicted of Murder

Texas has an unenviable reputation as the execution capital of the United States. Although the number of executions carried out in Texas has fallen in recent years, it remains ground zero for capital punishment. In some cases the state has pursued the ultimate sanction even when alarming questions linger over the original convictions.

A case in point is that of Bernardo Tercero, an illegal alien from Nicaragua, who has recently received a stay of execution from the state’s highest criminal court.

Tercero, was set to die by lethal ejection for the 1997 murder of a Houston school teacher. It was Tercero’s fourth application to the court for a stay.

Tercero, 39, had been set for lethal injection on the evening of Aug 26. The Texas court of criminal appeals issued the reprieve after defense attorneys argued that a prosecution witness at his trial in 2000 gave false testimony.

The appeals court has returned the case to the Harris County trial court to review the claim, and said its reprieve would remain in effect until the appeal was resolved.

The Texas Department of Criminal Justice (TDCJ), contends Tercero was 20-years-old when he committed murder during an armed robbery. On March 31, 1997, Tercero and co-defendant Jorge Becencil Gonzalez, were committing an armed robbery in Houston when Robert Berger entered the cleaners they were robbing. The prosecution said Tercero shot and killed Berger in front of his 3-year-old daughter. His wife was just outside the premises. The armed robbers left with about $400 that they had stolen from the cleaners.

 

A jury found Tercero guilty of capital murder in October of 2000 and sentenced him to death.

Tercero claimed the shooting was accidental. He testified that Berger confronted him at the cleaners and tried to thwart the robbery, and the gun went off as they struggled. “I believe it could have been me or him,” Tercero said.

The appeal has centered on what defense lawyers say is the false testimony of witness Sylvia Cotera.

Cotera, said in evidence that Tercero told her he had killed the man at the cleaners and that he had needed money. Cotera testified as to what the Nicaraguan was thinking at the time he committed the robbery. The defense says her testimony was relevant to the criminal element of intent to kill required for capital murder.

Defense lawyers lodged a further appeal before a federal judge in Houston, contending Tercero was mentally incompetent to be executed. That appeal had not been ruled on when the state court halted the punishment.

The case has attracted widespread attention in Tercero’s home country, where a clemency plea from Nicaraguan president Daniel Ortega was forwarded to Texas governor Greg Abbott. John Wittman, a spokesman for Abbott, responded that state and federal courts have rejected Tercero’s appeals at least five times.

The execution would have been the 11th in Texas this year. At least eight other Texas inmates on death row have execution dates scheduled in the next few months.

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