Spared execution once, Texas prisoner Kenneth Foster could face death penalty again after cellmate's death

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Kenneth Foster, a former Texas death row prisoner whose sentence was commuted to life in prison by former Gov. Rick Perry, is being investigated in the death of his cellmate, according to prison officials.

If prosecuted on murder charges, Foster could end up back on death row.

On Nov. 6, prison officers at the Telford Unit near Texarkana found Anthony Dominguez unresponsive in his cell “with injuries consistent with a physical altercation,” Robert Hurst, a spokesperson for the Texas Department of Criminal Justice, told The Texas Tribune on Tuesday. Dominguez was taken to the prison’s medical facility, and paramedics pronounced him dead about 40 minutes after he was found.

Video footage identified Foster as the man who injured Dominguez, Hurst said. The prison’s law enforcement branch is investigating Dominguez’s death and may suggest potential charges against Foster to the state’s Special Prosecution Unit, which prosecutes crimes in prisons.

Under Texas law, a prisoner who kills someone while serving a life sentence, or was previously convicted of murder, can be charged with capital murder. Foster has not yet been accused of any crime in Dominguez's death, however. If he is tried for capital murder, it would be up to the district attorney in Bowie County, where Telford prison is located, to decide whether to seek the death penalty, according to Jack Choate, who leads the Special Prosecution Unit.

"There will be a lot of information to gather and consider before making that decision," he said.

Foster, 45, is serving a life sentence for his role in the San Antonio murder of Michael LaHood in 1996. Foster was originally sentenced to death, but Perry commuted his sentence hours before he was to be executed in 2007. Foster had not killed LaHood but was instead the getaway driver in a string of robberies, and Perry was concerned that Foster had been tried along with with the triggerman, Mauriceo Brown. Brown was executed in 2006.

LaHood was the brother of Nico LaHood, a former Bexar County district attorney who is now running for a seat in the Texas House.

Foster’s commutation has long been spotlighted by those seeking to reform Texas’ death penalty statute that allows accomplices to be sentenced to death.

The statute, named the law of parties, holds that anyone involved in a crime resulting in death is equally responsible, even if they weren't directly involved in the actual killing. Most notably in death penalty cases, people committing another felony, like robbery, can be convicted and sentenced to death for murder if the jury decides murder “should have been anticipated as a result” of the other crime.

Lawmakers on both sides of the aisle have worked to lessen the responsibility of accomplices for crimes when it comes to the death penalty. This year, the Texas House passed a bill by Rep. Jeff Leach, R-Plano, to limit when accomplices could be sentenced to death. The bill did not move in the more conservative Senate, however, and failed.