Fifth Circuit Allows Appeal in Gongora Case

"Court allows condemned Fort Worth gang leader to appeal," is the AP report in today's Fort Worth Star-Telegram.

A federal appeals court is allowing a former Fort Worth street gang leader to move forward with an appeal that contends prosecutors made improper comments in their closing arguments to a jury that convicted him of capital murder and then sentenced him to death.

The 5th U.S. Circuit Court of Appeals also said in a ruling that death row inmate Nelson Gongora may pursue an appeal that contends the jury improperly voted to condemn him because one of the questions they considered in their deliberations was faulty.

Gongora, 29, was tried in Tarrant County in 2003, two years after Delfino Sierra, a Dallas father of four, was gunned down during an attempted robbery outside a party he was attending.

Gongora does not have an execution date.

And:

The Texas Court of Criminal Appeals in 2006 upheld his conviction and death sentence and the U.S. Supreme Court later that year refused to review the case. A federal district judge denied new appeals in 2007, which then were taken to the New Orleans-based 5th Circuit.

In its ruling late Wednesday, the appeals court granted Gongora a certificate of appealability on his claim that a prosecutor improperly told jurors that Gongora's refusal to testify implied his guilt. Gongora's trial lawyer objected to the remark and the district attorney told jurors he wanted them to understand that Gongora had a 5th Amendment right to not testify.

Gongora argued in his appeal the damage was done even though the trial judge later instructed jurors that the fact Gongora had not testified could not be considered in their deliberations.

The 13 page order, in Adobe .pdf format, is here.