For the second time in two days, Texas is planning an execution Thursday. If it proceeds, it will be the state’s 10th execution of the year.
The scheduled death of 46-year-old Daniel Acker is set to take place after 6 p.m. in Huntsville’s execution chamber, just 24 hours after another man, Troy Clark, died by lethal injection in the same spot.
Acker was sentenced to death in the 2000 East Texas murder of his girlfriend, 32-year-old Marquetta George. Her body was found on the side of the road several miles away from the trailer they shared in Hopkins County after their neighbors said they saw Acker grab her, toss her over his shoulder and shove her into his truck, according to court records. Acker has maintained that he was taking her to confront a man she had slept with and she jumped from his moving vehicle.
Acker has a final appeal pending before the U.S. Supreme Court that argues his execution should be halted because the state changed its primary theory on how George died after the trial. If the appeal is denied and the governor makes no move to temporarily halt the execution, he will be put to death with a lethal dose of pentobarbital.
Both Acker and the state agreed that he kidnapped his girlfriend during a fight on March 12, 2000. The two had argued at a club the night before, and he spent the night searching for her around town, he testified at trial. Shortly after a man brought her home the next morning, she ran to her neighbor’s home asking for help, and Acker took her away in his truck.
But there are multiple theories as to what happened between George’s abduction and her severely wounded body being found on the side of the road. At Acker’s trial in 2001, the state told the jury that George died by strangulation, blunt force injuries or both, court records show. The state’s main theory was that Acker strangled George to or near death, pulled her out of his truck and then ran her over.
But during an appellate hearing, the state’s own expert said George’s injuries weren’t consistent with strangulation, and the theory arose that Acker pushed her from the truck and then ran over her. The federal judge who took over the case after the hearing wrote in a later opinion that the evidence pointed to her having been “unconscious or incapacitated” when pulled from the truck and then run over by Acker.
Acker’s attorney argues that the change of theory necessitates a new look at his case. He said in a filing last year that his conviction and death sentence were upheld “based on false evidence, a now-discredited theory, and a new theory never presented to his jury.”
“There are now serious doubts as to whether this case was a homicide at all,” wrote Acker’s attorney, Richard Ellis, in a recent filing to the Texas Court of Criminal Appeals. “Mr. Acker was tried and convicted on the theory that he had abducted the victim Marquetta George and then strangled her while driving, a theory that the State has now disavowed in federal court.”
But despite the shifting primary theory, federal and state courts have upheld Acker’s murder conviction, saying the indictment and jury charge allowed the jury to decide George was killed by blunt force injuries alone, even if much of the evidence presented — including autopsy testimony — focused on strangulation.
“The district court found that the jury could have convicted Acker based on a theory of strangulation, a theory of blunt-force injury, or a combination of the two,” wrote the federal appellate court in its opinion upholding the lower court’s ruling. “… Although the prosecution referred to strangulation in closing argument, the same argument could easily apply to running over George, regardless of whether she had been strangled.”
Acker turned himself in after George’s death — he flagged down a patrol car as it passed by his mother’s house, according to court documents. His attorney wrote that he has admitted to her kidnapping and has expressed remorse for that but that George’s death was “a tragic accident, and never a homicide.”
The state, represented by Texas Attorney General Ken Paxton and his office, said in its last briefing filed Tuesday at the U.S. Supreme Court that Acker has already failed to persuade the courts — and the jury — of this claim.
“Acker produces no new evidence showing he did not commit the crime but continues to assert that George’s death resulted from her leap from the vehicle — a theory rejected by the jury at the time of trial,” wrote Assistant Attorney General Ellen Stewart-Klein.