Here is the dissenting opinion in the Kenneth Foster, Jr case, written by Judge Tom Price of the Texas Court of Criminal Appeals and joined by two other judges, Judge Charles Holcomb and Judge Cheryl Johnson. These three judges agree that “the applicant has identified new facts that might support a bare claim of actual innocence, under Ex parte Elizondo, (3) and would therefore allow the applicant to proceed on his fourth claim for relief”. They would have granted him a stay of execution “to allow him to pursue this claim through the ordinary course of habeas corpus proceedings.”
They further write that “Applicant now alleges that, since his direct appeal and even since he filed his initial application for writ of habeas corpus, he has had an opportunity to interview both Steen and the other surviving co-conspirator, Dillard. Both have given affidavits in which they assert, in essence, that by the time Brown got out of the car to rob LaHood, the conspiracy had run its course, at least as far as the other three were concerned, and Brown was acting out of an independent impulse. If these assertions are true, it appears evident that the applicant could not be guilty of capital murder under either of the theories of the law of parties that were submitted to the jury.“ (italics added for emphasis by TMN).
Unfortunately, the five judges writing in the majority, including Judge Sharon Keller, did not agree with the three dissenting judges and voted to execute Foster.
Judge Barbara Parker Hervey did not participate in either the majority or the dissenting opinion.
The final vote then was 5-3-1 in favor of execution.
