An accessory to the murder of a man during a store robbery will face execution. Joseph Lave would be the 25th inmate executed in Texas this year and the second of five set to die this month.
Two workers died in the robbery nearly 15 years ago, and one of the attackers was soon shot dead by police as he tried to run over an officer.
The two companions in the robbery were Lave, now 42, and Timothy Bates, who agreed to cooperate with prosecutors in exchange for a life prison term. He refused defense requests to testify at Lave's trial.
"I don't think he should have gotten death when the other guy didn't," said Richard Franklin, Lave's trial lawyer. "They were just about equally guilty. But that's not the way ultimately it all worked out."
Lave was convicted and condemned under the Texas law of parties, which makes a co-defendant equally culpable even if he was not the actual killer.
Two weeks ago, another Texas inmate condemned in a law of parties case was spared by Governor Rick Perry after the Texas Board of Pardons and Paroles recommended his sentence be commuted to life.
But a commutation request to the board for Lave was rejected Tuesday by the panel in a 7-0 vote. The lawyer who filed the request, Walter Long, would not discuss details of his petition.
Lave's lawyers were arguing to the U.S. Supreme Court the lethal injection should be stopped because Lave's trial attorneys were unable to challenge damaging statements attributed to Bates since they came from a police officer who interviewed Bates and not from Bates himself.
Also in Texas on Wednesday, the state's highest criminal appeals court said a man's conviction and death sentence four years ago for killing and beheading his common-law wife's three children were improper because statements from his common-law wife erroneously were allowed into evidence.
The court said John Allen Rubio's lawyers were not allowed to challenge the woman's statements by cross-examining her because she refused to testify.