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Aug 25, 3:15 PM EDT

Nicaraguan man scheduled for Wednesday execution in Texas gets court reprieve


AP Photo
AP Photo/Esteban Felix

HUNTSVILLE, Texas (AP) -- Texas' top criminal court on Tuesday stopped the scheduled execution of a Nicaraguan man convicted of killing a Houston high school teacher during a robbery more than 18 years ago.

Bernardo Tercero, 39, had been set for lethal injection Wednesday evening. In a brief order, the Texas Court of Criminal Appeals issued the reprieve after defense attorneys contended that a prosecution witness at his trial in 2000 gave false testimony.

The appeals court 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.

Tercero was convicted of fatally shooting 38-year-old Robert Berger, who was in a Houston dry cleaners shop in March 1997 when Tercero came in to rob it. Prosecutors said Tercero was in the U.S. illegally at the time.

Defense lawyers had another appeal before a federal judge in Houston, contending Tercero was mentally incompetent for execution. That appeal had not been ruled on when the state court halted the punishment.

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

Tercero contended the shooting was accidental. He testified that Berger confronted him 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.

He was arrested in Hidalgo County near the Mexican border more than two years after the slaying. A second man sought in the case never has been found.

Tercero would have been the 11th prisoner put to death this year in Texas, which carries out capital punishment more than any other state. At least eight other Texas inmates have execution dates scheduled in the coming months.

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