An illegal alien from Nicaragua, scheduled for execution in Huntsville, Texas, on Wednesday evening, received a stay of execution from the state’s highest criminal court.
The man, Bernardo Tercero, was set to die by lethal ejection for the 1997 murder of a Houston school teacher. This is Tercero’s fourth application to the court for a stay.
According to the Texas Department of Criminal Justice (TDCJ), Bernardo Aban Tercero, born August 20, 1976, hails from Chinadega, Nicaragua. He 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 when the victim, Robert Berger, entered the Park Avenue Cleaners in Houston, Texas.
Tercero shot and killed Berger in front of his 3-year-old daughter. His wife was just outside the door. The defendants left with about $400 that they had stolen from the cleaners.
A jury found him guilty of capital murder in October of 2000 and set his punishment at death.
The sister of Tercero’s girlfriend at the time of the offense served at the dry cleaners. She testified that in March 1997 that Tercero asked her questions about the hours and the layout of the store. He also asked her how much money came in to the cleaners. Tercero said he needed some money and was going to rob the dry cleaners. He threatened the woman and her family if she said anything, and told her that he had already killed a man.
Another witness, Sylvia Cotera, said that Tercero told her he had killed the man at the cleaners and that he had needed money. Cotera testified as to what Tercero was thinking at the time of the robbery. He talked to her after the robbery and allegedly told her these things. The defense says her testimony goes to the criminal element of intent to kill required for capital murder.
The Court of Criminal Appeals affirmed his conviction and sentence on direct appeal after the jury trial.
The court denied relief after Tercero filed a post-conviction application for writ of habeas corpus.
Tercero then filed a second writ application and claimed that he was younger than 18 years of age when he committed the crime for which he received a sentenced of death. The Court of Criminal Appeals remanded the case to a trial court, which found that Tercero failed to show that he was younger than 18-years-old at the time of the murder. The Texas Court of Criminal Appeals then reviewed the trial court record and adopted the trial court judge’s findings and denied relief.
On August 24, 2015, the native Nicaraguan filed a subsequent application for a writ of habeas corpus, wherein he alleged a denial of due process because the state presented false testimony at his trial.
The Texas Court of Appeals held on Tuesday afternoon that, “After reviewing applicant’s subsequent application, we find that he has satisfied the requirements of [the Texas Code of Criminal Procedure].”
The court has stayed Tercero’s execution and remanded the case to the trial court to review whether Tercero’s claim has any merit. His execution is stayed pending resolution of the issue.
His pro bono lawyer, Walter C. Long from Austin, Texas, argued that Tercero was denied due process because the state presented the false testimony of witness Sylvia Cotera.
His defense counsel argued that Cotera created a powerful false impression about his mental status during the offense, establishing intent and motives for the conviction of murder in the course of his robbery of the cleaners. Her declaration was attached to the pleading filed with the court.
The Texas Court of Criminal Appeals has remanded the proceedings to the trial court to make fact-findings with regard to this latest claim.
Houston criminal defense lawyer Grant Scheiner told Breitbart Texas, “The case will be returned to the trial court for a full hearing on Tercero’s claim of false testimony presented against him at trial.”
Scheiner added, “For everyone’s benefit, the trial court judge should conduct a full and fair hearing. A person accused is always entitled to due process.”
“With regard to the false testimony, Scheiner said, “The prosecutors have an obligation to review their evidence carefully. There’s usually no excuse for presenting false testimony, if that’s what happened here.”
Scheiner, board certified in criminal law, said “that unless the Texas Court of Criminal Appeals sets a specific deadline, the process could take weeks or months.”
Immediate past president of the Harris County Criminal Lawyer’s Association (HCCLA) and criminal defense lawyer Carmen Roe told Breitbart Texas, “Those in the criminal justice community believe that Texas has already killed at least one innocent man. Tercero’s claim that false testimony was used to convict and sentence him to death is a significant allegation impacting his right to due process of law. It is fundamental that Texas’ highest criminal court will not execute another citizen without a firm belief that death is warranted.”
Nicaraguan President Daniel Ortega has urged Texas Governor Greg Abbott to give Tercero clemency, as reported by the AP.
Breitbart Texas talked to the Texas governor’s spokesperson, John Wittman, who said that Tercero has had numerous appeals to both state and federal court.
Activists in Nicaragua have also asked for Tercero’s release.
Jason Clark, spokesman for the TDCJ told Breitbart Texas that Tercero was never removed from the Polunsky Unit where he has been confined.
This would have been the 11th execution in Texas this year. The Lone Star State leads the nation in executions.
Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served Texas as a prosecutor and an associate judge. Follow her on Twitter @LanaShadwick2