Parents say executing their son’s murderer will bring them more pain.
A judge ruled Tuesday that prosecutors in a Hurst capital murder case lied and that a convicted killer should spend the rest of his life in prison instead of being put to death.
The Texas Court of Criminal Appeals could commute Paul David Storey's death sentence, but appeals court judges are expected to decide whether to accept or reject the lower court judge's findings, according to Keith Hampton, who is representing death row inmate Paul David Storey together with defense attorney Mike Ware.
The Texas Court of Criminal Appeals, which sent the case to a lower court for further review in April 2017, is the highest criminal court in the state.
Prosecutors could appeal the ruling to the Supreme Court of the United States if it loses, but odds are slim that the Supreme Court would grant them a hearing, Hampton said.
"Basically, it is now up to the Court of Criminal Appeals," he said.
Visiting State District Judge Everitt Young ruled that Storey's sentence is entitled to further review on multiple constitutional grounds, which include a violation of his right to due process, the suppression of mitigating evidence by prosecutors, the introduction of false evidence to a jury and his right to a fair punishment hearing.
Efforts to save Story's life turned in April 2017, days before his scheduled execution date, when the court granted the convicted killer a stay because the murdered man's parents, Glenn and Judy Cherry, said they never wanted to see their son's killer put to death.
Ware argued in his petition to the court, Gov. Greg Abbott and the Texas Board of Pardons and Paroles, that prosecutors were not truthful when they told a jury that the family agreed to the imposition of the death penalty in Storey's case.
Prosecutors argued that the defense was made aware of how the murdered man's parents felt about the death penalty ruling in Storey's case and that Cherry's parents were in agreement with the death sentence for Storey because he refused to accept a plea bargain for life in prison without the possibility of parole.
The court was ordered to take a look at whether prosecutors were being truthful, and in Tuesday's ruling Young said they were not.
The Tarrant County district attorney's office, which earlier recused itself from the Storey case pending review, said the attorneys who prosecuted the case are no longer with the district attorney's office.
"This trial took place during a different administration," said Sharen Wilson, Tarrant County district attorney. "We created a conviction integrity unit to ensure best practices that wouldn't allow something like this to happen on our watch."
Storey, 33, was convicted of capital murder in 2008 in the robbery-slaying of Jonas Cherry, who was an assistant manager of Putt-Putt Golf and Games at Texas 121/Loop 820 across from North East Mall in Hurst.
Law enforcement personnel argued that on the morning of Oct. 16, 2006, Storey and his co-defendant Mark Porter stood over a kneeling Cherry, who pleaded: “Please! I gave you what you want. Don’t hurt me.”
They refused and shot him twice in the head and twice in his legs. Cherry, who was approaching his first wedding anniversary, was pronounced dead at the scene.
Storey and Porter were convicted of capital murder, but only Storey got the death penalty. Porter got life without parole after making a deal with the Tarrant County district attorney’s office.
Christy Jack, one of the prosecutors who is now a partner at Varghese Summersett, told the Star-Telegram at the time the stay was issued that Storey's defense team was informed before the trial about how Cherry's parents felt about the death penalty in this case.
“Death penalty litigation is the most important thing that attorneys do,” Jack said at the time. “So I want everything that I do in these cases to be above reproach.”
Jack said Tuesday she stands by what she has said about this case in the past.
“I faithfully served the citizens of Tarrant County for nearly 24 years," Jack said. "I stand by my testimony and the personal note from the victim’s family, thanking me for speaking on their behalf after the jury returned a unanimous decision for the death penalty.”
Robert Foran, the lead prosecutor at the time of the 2008 trial, confirmed Jack’s account.
“The defense decided not to call the parents to the stand,” Foran said during a Star-Telegram interview at the time. “That was a tactical decision on their part, but we told them and they damn well know it.”
This story includes information from the Star-Telegram archives.