Thread: Nicaraguan man set to be executed for slaying 18 years ago

AUGUST 25, 2015

Nicaraguan man set to be executed for slaying 18 years ago




Members of the Nicaraguan Human Rights Center, CENIDH, holds a picture of Nicaraguan Bernardo Aban Tercero during a demonstration against his execution in Managua, Nicaragua, Monday, Aug. 24, 2015. Tercero, whose age was in dispute during the trial, was sentenced to death in October 2000 in connection with the March 1997 fatal shooting of Robert Berger, 38, a Reagan High School English teacher. The execution is scheduled for next Wednesday Aug. 26 in Huntsville, Texas. Esteban Felix AP Photo

BY MICHAEL GRACZYK Associated Press

HUNTSVILLE, TEXAS With his 3-year-old daughter in tow and his wife in the car outside, high school teacher Robert Berger walked into a Houston dry cleaning shop and into a holdup that cost him his life.

Now, a Nicaraguan man who prosecutors say was in the United States illegally when Berger was gunned down more than 18 years ago is set for execution Wednesday evening for shooting the 38-year-old during the robbery in which two men fled with about $400 from the cash drawers.

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A member of the Nicaraguan Human Rights Center, CENIDH, holds a picture of Nicaraguan Bernardo Aban Tercero during a demonstration against his execution in Managua, Nicaragua, Monday, Aug. 24, 2015. Tercero, whose age was in dispute during the trial, was sentenced to death in October 2000 in connection with the March 1997 fatal shooting of Robert Berger, 38, a Reagan High School English teacher. The execution is scheduled for next Wednesday Aug. 26 in Huntsville, Texas. Esteban Felix AP Photo


Bernardo Tercero, 39, would be the 11th prisoner put to death this year in Texas, which carries out capital punishment more than any other state. His attorneys asked a federal court Monday to halt the punishment, contending Tercero was delusional and mentally incompetent for execution.

State attorneys opposing a reprieve argued that reports of Tercero's mental illness didn't surface this year until his execution order was signed in May. A prison interview last week with a Spanish-language Univision station in which Tercero talked about the crime and his case shows he is "well aware of his impending execution and has more than a rational understanding of his situation and the reason for the execution," an assistant attorney general, Jeremy Greenwell, said in a court filing.

A prisoner's awareness and understanding of the punishment are criteria established by the U.S. Supreme Court to allow a convicted killer's execution.

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

At his capital murder trial in Houston in 2000, a woman who worked at the dry cleaners and was the sister of Tercero's girlfriend testified that the day before the March 1997 shooting Tercero asked her about the layout of the store and said he planned to rob it.

In the store, a witness testified, Tercero said something to Berger, grabbed his arm and shot him in the back of the head when Berger tried to get away.

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.

A Harris County jury rejected his version, convicted him of capital murder and decided he should die.

"Robert Berger was doing what I could be doing in a weekend, what you could be doing, going to run errands like anyone else," the trial prosecutor, Sally Ring, recalled last week. "He wasn't looking for trouble.

"It's just heartbreaking."

The second man sought in the case never has been found.
Human Rights First, a New York-based group, has contended in recent weeks that Tercero had poor legal help at his trial and in early appeals and was entitled to a new trial under U.S. international agreements. The group said the State Department refused that argument.

Tercero was arrested in Hidalgo County near the Mexican border more than two years after the slaying. While a fugitive from Texas and back in Nicaragua, court documents show he was involved in several robberies, shootings and the abduction of a 4-year-old boy.

Immigration records show he was charged at least twice with unlawful entry into the country, in 1996 and 1999.

Harris County records showed two theft arrests, from 1994 and 1995, in which he used a false name and said he was a Texas-born U.S. citizen.

http://www.fresnobee.com/news/nation...e32313897.html

TEXAS TOP CRIMINAL COURT STOPS EXECUTION OF ILLEGAL ALIEN CONVICTED OF MURDERING SCHOOL TEACHER

by LANA SHADWICK
26 Aug 2015
1,452 comments

An illegal alien from Nicaragua, scheduled for execution in Huntsville, Texas, on Wednesday evening, received a stay of execution from the state’s highest criminal court.

The man, Bernardo Tercero, was set to die by lethal ejection for the 1997 murder of a Houston school teacher. This is Tercero’s fourth application to the court for a stay.

According to the Texas Department of Criminal Justice (TDCJ), Bernardo Aban Tercero, born August 20, 1976, hails from Chinadega, Nicaragua. He was 20-years-old when he committed murder during an armed robbery.

On March 31, 1997, Tercero and co-defendant Jorge Becencil Gonzalez, were committing an armed robbery when the victim, Robert Berger, entered the Park Avenue Cleaners in Houston, Texas.

Tercero shot and killed Berger in front of his 3-year-old daughter. His wife was just outside the door. The defendants left with about $400 that they had stolen from the cleaners.

A jury found him guilty of capital murder in October of 2000 and set his punishment at death.

The sister of Tercero’s girlfriend at the time of the offense served at the dry cleaners. She testified that in March 1997 that Tercero asked her questions about the hours and the layout of the store. He also asked her how much money came in to the cleaners. Tercero said he needed some money and was going to rob the dry cleaners. He threatened the woman and her family if she said anything, and told her that he had already killed a man.

Another witness, Sylvia Cotera, said that Tercero told her he had killed the man at the cleaners and that he had needed money. Cotera testified as to what Tercero was thinking at the time of the robbery. He talked to her after the robbery and allegedly told her these things. The defense says her testimony goes to the criminal element of intent to kill required for capital murder.

The Court of Criminal Appeals affirmed his conviction and sentence on direct appeal after the jury trial.

The court denied relief after Tercero filed a post-conviction application for writ of habeas corpus.

Tercero then filed a second writ application and claimed that he was younger than 18 years of age when he committed the crime for which he received a sentenced of death. The Court of Criminal Appeals remanded the case to a trial court, which found that Tercero failed to show that he was younger than 18-years-old at the time of the murder. The Texas Court of Criminal Appeals then reviewed the trial court record and adopted the trial court judge’s findings and denied relief.

On August 24, 2015, the native Nicaraguan filed a subsequent application for a writ of habeas corpus, wherein he alleged a denial of due process because the state presented false testimony at his trial.

The Texas Court of Appeals held on Tuesday afternoon that, “After reviewing applicant’s subsequent application, we find that he has satisfied the requirements of [the Texas Code of Criminal Procedure].”

The court has stayed Tercero’s execution and remanded the case to the trial court to review whether Tercero’s claim has any merit. His execution is stayed pending resolution of the issue.

His pro bono lawyer, Walter C. Long from Austin, Texas, argued that Tercero was denied due process because the state presented the false testimony of witness Sylvia Cotera.

His defense counsel argued that Cotera created a powerful false impression about his mental status during the offense, establishing intent and motives for the conviction of murder in the course of his robbery of the cleaners. Her declaration was attached to the pleading filed with the court.

The Texas Court of Criminal Appeals has remanded the proceedings to the trial court to make fact-findings with regard to this latest claim.

Houston criminal defense lawyer Grant Scheiner told Breitbart Texas, “The case will be returned to the trial court for a full hearing on Tercero’s claim of false testimony presented against him at trial.”

Scheiner added, “For everyone’s benefit, the trial court judge should conduct a full and fair hearing. A person accused is always entitled to due process.”

“With regard to the false testimony, Scheiner said, “The prosecutors have an obligation to review their evidence carefully. There’s usually no excuse for presenting false testimony, if that’s what happened here.”

Scheiner, board certified in criminal law, said “that unless the Texas Court of Criminal Appeals sets a specific deadline, the process could take weeks or months.”

Immediate past president of the Harris County Criminal Lawyer’s Association (HCCLA) and criminal defense lawyer Carmen Roe told Breitbart Texas, “Those in the criminal justice community believe that Texas has already killed at least one innocent man. Tercero’s claim that false testimony was used to convict and sentence him to death is a significant allegation impacting his right to due process of law. It is fundamental that Texas’ highest criminal court will not execute another citizen without a firm belief that death is warranted.”

Nicaraguan President Daniel Ortega has urged Texas Governor Greg Abbott to give Tercero clemency, as reported by the AP.

Breitbart Texas talked to the Texas governor’s spokesperson, John Wittman, who said that Tercero has had numerous appeals to both state and federal court.

Activists in Nicaragua have also asked for Tercero’s release.



Jason Clark, spokesman for the TDCJ told Breitbart Texas that Tercero was never removed from the Polunsky Unit where he has been confined.

This would have been the 11th execution in Texas this year. The Lone Star State leads the nation in executions.

http://www.breitbart.com/texas/2015/...chool-teacher/