Late appeals denied, man's execution set for murder he says he didn't commit

More than 14 years after a robbery turned into a double murder in a Dallas suburb, Terry Edwards is being readied for his execution, set for Thursday evening.

The execution is scheduled to move forward after 6 p.m. after state and federal appellate courts rejected a flurry of late appeals filed this month by Edwards' attorneys maintaining his innocence of the crime and claiming prosecutorial misconduct at trial.

A little before a Balch Springs Subway opened for the day on July 8, 2002, cousins Terry and Kirk Edwards arrived to rob it, according to the filings. Terry, then 28, had worked at the sandwich shop a few months before but was fired for allegedly stealing money from the register. The two employees inside, Tommy Walker and Mickell Goodwin, were shot in the head and killed during the robbery.

The shootings were pinned on Terry, who was found by police almost immediately after the crime with the money and the gun. Kirk turned himself in the next day and pleaded guilty to aggravated robbery. Terry received the death penalty; Kirk got 25 years and is eligible for parole, though his recent review this month was denied, according to prison records.

Dallas County prosecutors argued Kirk was outside as a getaway driver and Terry had “controlled” and “engineered” the entire crime, according to court filings. But Terry and his lawyers maintain that it was Kirk who shot the man and woman inside the store — that Terry was in the bathroom with no knowledge of his cousin’s murderous intent and was only handed the gun when he came out.

Audio recordings from the police car where Terry was held following the murders include him referring to his cousin, saying, “All you had to do was do what I told you,” but also talking about himself.

“Man, I done fucked up this time, man, I fucked up big time. Got two mother fucking murders,” Terry Edwards said, according to the county's brief to the Texas Court of Criminal Appeals.

Edwards has been on death row for more than 13 years, and his first execution date was set for last May, according to court records. After he wrote to the Dallas court claiming his lawyer had abandoned him and that he only learned of his upcoming execution from prison staff, he was given more time. The court rescheduled his execution twice last year to allow new attorneys to be assigned and familiarize themselves with the case.

Earlier this month, those attorneys filed requests for relief in state and federal appellate courts as well in the Dallas district court that issued the death warrant.

The main argument Edwards used in recent filings is that the prosecutor at his trial “teamed up” with the defense’s forensic technician who tested for gunshot residue on Edwards’ hands after his arrest. Even though she only found one of three elements found in gunshot residue, she stated on cross-examination that the others could have been wiped off his hands. Another expert obtained by Edwards’ current attorneys says it is impossible to wipe only two of three elements off your hands. The state’s own testing for gunshot residue on Edwards came back negative, according to Edwards’ brief.

The prosecutor and analyst were involved in a previous trial that resulted in an exoneration based on wrongful conviction, according to the brief, a point Edwards claims warrants a review in his own case.

Edwards and his team of lawyers have also recently discovered a note the state had that could indicate another witness who was not pursued, who potentially could have placed Kirk Edwards inside the sandwich shop instead of outside as the prosecution claimed, according to the filing.

The Texas Attorney General’s Office and the Dallas District Attorney’s Office responded to these claims by citing death penalty appellate legal procedure. Edwards has already gone through an appeals process in both state and federal court. Legally, for a new appeal to be considered, the issues being raised must not have been able to come up earlier. This allows for things like new science or new witnesses to be able to come forward.

The state and county have said Edwards' arguments don’t fit that rule.

“This subsequent application is a bold-faced, last-minute attempt to inundate the Court with a large of amount of information, much of which is misrepresented or incomplete, in the hopes of obtaining a stay of execution,” wrote Dallas Assistant District Attorney Jaclyn O’Connor Lambert in response to Edwards' filing in the Texas Court of Criminal Appeals.

Edwards, however, claims these issues weren’t raised earlier because his previous attorneys were incompetent. In his first state habeas appeal filed in 2009, which focuses on things outside of the trial such as new evidence, his former lawyer only wrote 10 original sentences in his brief, the rest being copied from previous cases, according to Edwards’ filing.

“Absolutely, this evidence should have been brought to light much earlier, but his prior attorneys didn’t do anything for him,” said John Mills, one of Edwards’ federal attorneys.

The Texas Court of Criminal Appeals and U.S. 5th Circuit Court of Appeals both denied requests for relief earlier this week, restating that Edward’s claims did not qualify for review.

A new motion Edwards filed Tuesday asked the Dallas district court that set his execution to withdraw or change the date, claiming the Dallas DA’s Conviction Integrity Unit has blocked Edwards’ lawyers from looking into the former prosecutor’s past cases. Gov. Greg Abbott also has the ability to grant a 30-day stay, though he has never done this.

If the execution is not stopped, Edwards, now 43, will be the second person executed this year in Texas and the third in the country. Christopher Wilkins was put to death in Huntsville on Jan. 11, and a week later, Virginia executed Ricky Gray. Last year, seven people in Texas were put to death, a 20-year low.

More on the Texas death penalty:

• The first execution in Texas and the United States, for the killer of two men in Fort Worth after a fake drug deal, was held Wednesday evening.
  
• More than a year after the feds blocked Texas from importing an execution drug, Texas filed a lawsuit demanding a final decision on whether the drugs can be delivered.