The Texas Court of Criminal Appeals has halted the execution of Paul Storey, which was set for Wednesday.
In a three-page order Friday afternoon, the court sent the case back to the Tarrant County trial court to review claims regarding the prosecution presenting false evidence at Storey’s trial.
In 2008, Storey, 32, was sentenced to death for the 2006 murder of Jonas Cherry during a robbery of a miniature golf course where Cherry worked in Hurst, near Fort Worth. At the trial, the prosecution said that Cherry’s parents wanted the death penalty.
“It should go without saying that all of Jonas [Cherry’s] family and everyone who loved him believe the death penalty was appropriate,” the prosecution said during the penalty phase of the trial, according to Storey’s appeal.
Storey and Cherry’s parents, Glenn and Judith, say that’s not true. The Cherrys wrote to Gov. Greg Abbott and the Board of Pardons and Paroles in February, asking for a life sentence for Storey. The Cherrys said they never wanted the death penalty and made that clear to the prosecution, according to Storey’s appeal.
“As a result of Jonas’ death, we do not want to see another family having to suffer through losing a child and family member ... due to our ethical and spiritual values we are opposed to the death penalty,” the Cherrys said in their statement.
Sven Berger, a juror in Storey’s trial who recently asked Texas legislators to change jury instructions in capital cases, also wrote an affidavit for Storey’s recent appeal. In his affidavit, Berger said he known the Cherrys didn’t want death, he would have “held out for a life without the possibility of parole [sentence] for as long as it took.”
Now, the trial court has been ordered to determine whether the fact that the Cherrys opposed the death penalty could have been discovered by appellate attorneys earlier. 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. This evidence was brought forth to the courts less than two weeks before his execution.
The appeal claims the evidence of the Cherrys’ disapproval of the sentence was learned only in the last 90 days. But the Court of Criminal Appeals said it’s not yet clear whether his previous state appellate attorney could have learned about the Cherrys’ beliefs.
“The trial court is ordered to make findings of fact and conclusions of law regarding whether the factual basis of these claims was ascertainable through the exercise of reasonable diligence on or before the date the initial application was filed,” the order states. “If the court determines that the factual basis of the claims was not ascertainable through the exercise of reasonable diligence on or before the date the initial application was filed, then it will proceed to review the merits of the claims.”
Storey’s appeal said the evidence of false claims warrants him a new punishment hearing, where he either could be sentenced to death again or receive a life sentence without the possibility of parole.