With his 3-year-old daughter in tow and his wife in the car outside, high school teacher Robert Berger walked into a Houston dry cleaning shop and into a holdup that cost him his life.
Now, a Nicaraguan man who prosecutors say was in the United States illegally when Berger was gunned down more than 18 years ago is set for execution Wednesday evening for shooting the 38-year-old during the robbery in which two men fled with about $400 from the cash drawers.
Bernardo Tercero, 39, would be the 11th prisoner put to death this year in Texas, which carries out capital punishment more than any other state. His attorneys asked a federal court Monday to halt the punishment, contending Tercero was delusional and mentally incompetent for execution.
State attorneys opposing a reprieve argued that reports of Tercero's mental illness didn't surface this year until his execution order was signed in May. A prison interview last week with a Spanish-language Univision station in which Tercero talked about the crime and his case shows he is "well aware of his impending execution and has more than a rational understanding of his situation and the reason for the execution," an assistant attorney general, Jeremy Greenwell, said in a court filing.
A prisoner's awareness and understanding of the punishment are criteria established by the U.S. Supreme Court to allow a convicted killer's execution.
Tercero's case has attracted attention in his home country, where a clemency plea from Nicaraguan President Daniel Ortega was forwarded to Texas Gov. Greg Abbott. An Abbott spokesman, John Wittman, responded that state and federal courts have rejected Tercero's appeals at least five times.
At his capital murder trial in Houston in 2000, a woman who worked at the dry cleaners and was the sister of Tercero's girlfriend testified that the day before the March 1997 shooting Tercero asked her about the layout of the store and said he planned to rob it.
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In the store, a witness testified, Tercero said something to Berger, grabbed his arm and shot him in the back of the head when Berger tried to get away.
Tercero contended the shooting was accidental. He testified that Berger confronted him and tried to thwart the robbery, and the gun went off as they struggled. "I believe it could have been me or him," Tercero said.
A Harris County jury rejected his version, convicted him of capital murder and decided he should die.
"Robert Berger was doing what I could be doing in a weekend, what you could be doing, going to run errands like anyone else," the trial prosecutor, Sally Ring, recalled last week. "He wasn't looking for trouble.
"It's just heartbreaking."
The second man sought in the case never has been found.
Human Rights First, a New York-based group, has contended in recent weeks that Tercero had poor legal help at his trial and in early appeals and was entitled to a new trial under U.S. international agreements. The group said the State Department refused that argument.
Tercero was arrested in Hidalgo County near the Mexican border more than two years after the slaying. While a fugitive from Texas and back in Nicaragua, court documents show he was involved in several robberies, shootings and the abduction of a 4-year-old boy. Immigration records show he was charged at least twice with unlawful entry into the country, in 1996 and 1999. Harris County records showed two theft arrests, from 1994 and 1995, in which he used a false name and said he was a Texas-born U.S. citizen.
