A trial judge recommended taking Paul Storey off death row. The Texas Court of Criminal Appeals said no.

Paul Storey was one step away from escaping the death penalty. Then came the Texas Court of Criminal Appeals.

The state’s highest criminal court Wednesday rejected the trial court judge’s recommendation to resentence Storey to life in prison without the possibility for parole after a three-day hearing last year. Storey’s sentence was being reconsidered after it became known that Tarrant County prosecutors falsely said at his 2008 trial that the family of Storey’s victim, Jonas Cherry, wanted the death penalty. Cherry’s parents have since said that they have always opposed capital punishment, including for their son’s killer.

In Wednesday’s ruling, the court explained that it was taking the unusual step of opposing the trial judge, who it acknowledged “is in the best position to assess the credibility of the witnesses.” While the court order didn't argue against the finding that Storey's trial lawyers were unaware of the Cherrys' opposition, it ruled that one of his appellate attorneys — who is now dead — might have known, claiming there was no evidence to show he didn't.

The judges also ruled that since Cherry’s father said he often talked about his anti-death penalty views, the appellate attorney, Robert Ford, could have found out through “the exercise of reasonable diligence.”

“The trial court found that Ford did not know that the victim’s parents opposed a death sentence for [Storey],” the court’s order states. “This finding is not supported by the record. [Storey] did not present any evidence showing what Ford did or did not know regarding the victim’s parents’ anti-death penalty views.”

“And although the trial court found that Ford generally ‘had a strong reputation for his diligence,’ [Storey] presented no evidence showing that Ford was diligent in his particular case,” the ruling continued.

Generally in death penalty cases, if evidence could have been raised at an earlier appeal and wasn’t, it is not allowed to be used in future appeals. After the ruling, one of Storey's attorneys, Keith Hampton, said the legal team would ask the court to reconsider the ruling, arguing the opinion now requires appellate attorneys to interview murder victim survivors. He said an equitability argument raised in their appeal was ignored in the court opinions.

"You can't fault ... counsel for not finding something that you suppressed," Hampton told The Texas Tribune. "You're not in a position to say, 'Hey, you didn't try hard enough to find the thing that I buried.'"

Storey, now 34, was sentenced to death for the 2006 murder of Cherry, the 28-year-old assistant manager at a miniature golf course near Fort Worth, during a robbery. Court records state that Storey and another man shot Cherry while he was on his knees begging for his life. At his 2008 trial, a prosecutor said that “it should go without saying” that all of Cherry’s family “believe the death penalty is appropriate.”

But two months before his scheduled execution in 2017, Cherrys’ parents, Glenn and Judith, wrote to Gov. Greg Abbott and the Board of Pardons and Paroles, asking for a life sentence. They said they never wanted the death penalty and had made that clear to Tarrant County prosecutors.

“As a result of Jonas’ death, we do not want to see another family having to suffer through losing a child and family member,” they wrote.

One of the jurors in Storey’s trial, who has asked Texas legislators to change what he says are confusing jury instructions in capital cases, also wrote an affidavit that he would have never voted for a death sentence if he knew the Cherrys didn’t want it.

The Court of Criminal Appeals stopped his execution, and sent the case back to the trial court to determine if the Cherrys’ opposition could have been discovered earlier. The judge found that Ford had exercised due diligence as Storey’s appellate attorney, and that the trial prosecutors withheld the information and knowingly presented false evidence at trial. He recommended Storey’s sentence be changed to life.

Though the majority of the nine-judge Court of Criminal Appeals disagreed, three dissented from Wednesday’s ruling. In a 26-page dissent, Judge Scott Walker said asking the Cherrys their opinions on the death penalty goes beyond “reasonable diligence.”

“‘Reasonable’ diligence would not go prying into the private feelings of a murder victim’s family without a very good reason for doing so,” Walker wrote in his dissent, which Judge Michelle Slaughter joined. “The trial court found that ‘in most cases family members of murder victims do not wish to speak to lawyers representing the person found guilty of killing their loved one.’”

Judge Kevin Yeary said in his dissent, also joined by Slaughter, that he would at least set the case for additional review instead of simply rejecting the appeal, which the court did.

“What I would not do is simply declare that [Ford] — who is now deceased and unable to respond to claims about his diligence—failed to diligently investigate the present claims, and dismiss the subsequent writ application on that basis,” he wrote.

Three other judges, however, signed onto an opinion by Judge Barbary Hervey in support of the court’s order, saying the case is not one of false evidence “because no evidence of the family’s preference was introduced at trial.” She said that the prosecutor’s closing argument is not evidence at trial.

Hervey also stated that even if evidence of the Cherrys’ opposition was brought up at trial it would not change the horrors of the case, also noting that some jurors cried during Cherry’s wife’s testimony at trial explaining how her husband's murder impacted her life.

"In light of all of this, it is difficult — if not impossible — to conclude that the victim’s parents’ general opposition to the death penalty would cast 'the whole case in a different light,'" she wrote.