A convicted murderer who would be the first inmate put to death in Texas using a new three-drug cocktail was hoping the Supreme Court would delay his scheduled Tuesday execution in order to consider his claim that one of his lawyers had failed him.
Cary Kerr, who was convicted of raping and strangling a woman in 2001, was scheduled to die at 6 p.m. by lethal injection that uses the sedative pentobarbital instead of sodium thiopental. Texas recently switched the sedative it uses in the three-drug combination it administers at executions because sodium thiopental, which the state had used since 1982, is no longer available. Pentobarbital already has been used for executions in Oklahoma and Ohio.
Kerr's appeal does not challenge the switch in drugs. Rather, the former laborer and truck driver argues that a lawyer didn't properly represent him while he was appealing his conviction. The Supreme Court has agreed to review an Alabama case that has similar circumstances, and another Texas inmate last month won a last-day reprieve by raising a similar claim.
State attorneys, in their arguments to the justices, said the appeal was only "a calculated and meritless attempt" to delay Kerr's punishment for the rape and strangulation of a woman near Fort Worth a decade ago.
The body of 34-year-old Pamela Horton was found dumped in a street.
Kerr, 46, said he first met Horton when they lived in the same trailer park, then ran into her the evening of July 11, 2001, at a bar where he was celebrating passing the test to get his commercial truck driving license.
"I've never denied being with her," he said recently from death row.
Kerr said he was "half drunk" and Horton was drunk when he decided to take her to his place where they had sex and then argued. She left alive, he insisted.
A taxi driver spotted a woman's body about 2 a.m. on July 12, 2001. Emergency medical technicians were at the scene when Kerr arrived and said he might know the woman. When police got there, they found Horton's purse in his car and a strand of long blond hair on him. Police arrested Kerr.
"They looked at me and me only," Kerr, maintaining his innocence, said from prison.
Blood alcohol tests showed Horton's level approached 0.50 -- six times the legal limit for driving. Detectives later found pieces of her torn clothing at Kerr's home.
At Kerr's 2003 trial, prosecutors presented evidence showing he had a history of violence toward women, took advantage of Horton's condition and raped, beat and strangled her before throwing her body on the street in Haltom City, about five miles north of Fort Worth.
Jurors agreed and decided he should die.
"I think they're idiots," Kerr said of his jury. "They didn't pay attention."
"We just want to know he's gone," Horton's aunt, Joann Mazyck, said.
Kerr, who lived most of his life in the Dallas area, previously served a year in jail after pleading guilty to a 1999 charge of assault with intent to do bodily harm.