BY JOLIE MCCULLOUGH

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. Itโ€™s the second time heโ€™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 Tomlinโ€™s death in April 2004, Carter confessed to police that he and LaKeitha Allen broke into Tomlinโ€™s home, bound him with duct tape and robbed him, according to court filings. But he claims he didnโ€™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, Carterโ€™s attorney cited โ€œnew evidenceโ€ of other pathologists who disagreed that Tomlin was smothered.

โ€œWhile the experts disagreed on the ultimate causeโ€”whether Mr. Tomlinโ€™s death was caused by positional asphyxiation or a cardiac eventโ€”they unanimously agreed that the evidence does not show that Mr. Tomlinโ€™s death was the result of intentional smothering,โ€ wrote Raoul Schonemann, Carterโ€™s attorney, in his latest response to the court.

The Tarrant County Criminal District Attorneyโ€™s Office argued Wednesday that Carterโ€™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 doesnโ€™t qualify as โ€œnew scientific evidence,โ€ which is one thing an appeals court can review after initial appeals in a death penalty case.

โ€œMere disagreement among expertsโ€™ opinions that could have been found at the time of [Carterโ€™s] initial โ€ฆ application, or even before his trial, do not amount to new scientific evidence that was previously unavailable,โ€ wrote Assistant Criminal District Attorney Helena Faulkner.

Read more at texastribune.org. 

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