Four days before he was set to die, the Texas Court of Criminal Appeals on Friday halted the execution of a man convicted in a 2004 Fort Worth home robbery and murder. It’s the second time he’s had an execution taken off the schedule this year.
Tilon Carter, 37, filed a late appeal to the court Monday claiming the prosecution used false evidence at trial that the victim, 89-year-old James Tomlin, died partially from being smothered. Carter has maintained that he never intentionally killed Tomlin and was therefore ineligible for a death sentence.
The Court of Criminal Appeals issued an order Friday afternoon staying the execution while the judges look into the case. His death was set for Tuesday evening. It would have been the fifth execution in Texas this year.
After Tomlin’s death in April 2004, Carter confessed to police that he and LaKeitha Allen broke into Tomlin’s home, bound him with duct tape and robbed him, according to court filings. But he claims he didn’t smother Tomlin and left him bound but alive and talking. The Tarrant County medical examiner testified during trial that Tomlin died partially from smothering, but also from positional asphyxia, meaning he suffocated after being left in a dangerous position unable to move.
In his new appeal, Carter’s attorney cited “new evidence” of other pathologists who disagreed that Tomlin was smothered.
“While the experts disagreed on the ultimate cause—whether Mr. Tomlin’s death was caused by positional asphyxiation or a cardiac event—they unanimously agreed that the evidence does not show that Mr. Tomlin’s death was the result of intentional smothering,” wrote Raoul Schonemann, Carter’s attorney, in his latest response to the court.
The Tarrant County Criminal District Attorney’s Office argued Wednesday that Carter’s arguments were barred from examination because the issue should and could have been raised at an earlier time in his appeals process.
The county also argued that gathering new expert opinions doesn’t qualify as “new scientific evidence,” which is one thing an appeals court can review after initial appeals in a death penalty case.
“Mere disagreement among experts’ opinions that could have been found at the time of [Carter’s] initial … application, or even before his trial, do not amount to new scientific evidence that was previously unavailable,” wrote Assistant Criminal District Attorney Helena Faulkner.