Billie Coble was convicted of capital murder in the 1989 slayings of his estranged wife’s parents and brother in McLennan County, near Waco.
Miguel Gutierrez Jr./The Texas Tribune

On Thursday, Texas is scheduled to execute a 70-year-old man for killing three of his wife’s family members in the Waco area nearly three decades ago.

Unless the U.S. Supreme Court or Gov. Greg Abbott stops the execution, Billie Coble will become the oldest person Texas puts to death since the modern era of the death penalty began in the 1970s, according to prison data. He is part of an aging death row population; Coble is one of nearly 30 inmates who have lived on Texas’ death row for more than 25 years.

In a late filing, Coble asked the nation’s high court to stop his execution, claiming a recent ruling that tossed out a Louisiana man’s death sentence last year should apply to his case. In that ruling, the U.S. Supreme Court held that the defendant can insist his lawyers don’t admit to guilt at trial even if they think it’s the best way to sway jurors to vote against the death penalty.

Coble was convicted of capital murder in the 1989 slayings of his estranged wife’s parents and brother in McLennan County, court records show. He had been married to his wife, Karen, for a little over a year when she told him she wanted a divorce. They lived in the small town of Axtell, just across the street from her parents, Robert and Zelda Vicha, and down the road from her brother, Bobby.

According to court records, when Karen came home from work, she found her children tied up, and Coble approached her and told her that he had killed her parents and brother. At gunpoint, he led her to the car and tried to flee with her. She fought back, and eventually a sheriff’s deputy began following them before Coble crashed into a parked car.

At trial, the prosecution showed evidence of a long history of Coble brutalizing and molesting women, including his former wives and young girls. The jury also heard evidence that Coble had a traumatizing childhood; he lived in a state home for 12 years while his mother was institutionalized and enlisted to fight in the Vietnam War at age 17. He was found guilty of the murders and sentenced to death in June 1990.

But in 2007, the 5th U.S. Circuit Court of Appeals tossed out that sentence based on changing precedent on how explicitly jurors have to weigh mitigating evidence, like Coble’s troubled childhood, that could make them lean toward the lesser sentence of life in prison. Still, after a jury weighed such evidence, Coble was again sentenced to death in 2008.

Even in the short time when his death sentence was lifted, courts always determined Coble to be guilty of capital murder. Now, in a last-shot petition to the U.S. Supreme Court, he is asking the justices to review his conviction, not his sentence, based on another ruling that the court recently handed down.

In Robert McCoy’s case out of Louisiana, a majority of the justices held that under the Sixth Amendment, a defendant has the right to choose the objective of his defense. At McCoy’s trial, despite his loud objections in court that he was innocent, his lawyers were allowed to concede that McCoy killed his wife’s family as part of an effort to sway the jury away from a death sentence.

The high court ruled last year that once McCoy communicated to the court and his lawyers that he objected to his lawyer’s strategy, “a concession of guilt should have been off the table.”

Coble’s current attorney, A. Richard Ellis, claims the McCoy ruling should also apply to his client since Coble also objected to his lawyers’ strategy. His petition to the high court said that before Coble’s trial, his lawyers filed a notice that they would raise an insanity defense, but after the state rested its case in the guilt phase of the trial, they “abruptly changed course.”

Ellis said that in a stunning move, Coble’s trial lawyers largely just played silent footage of scenes from Vietnam and, in closing, conceded that Coble was guilty. He said Coble’s objective was to present a defense.

But there are some key differences between Coble’s and McCoy’s cases: Coble seemingly only objected to his lawyers, not the court itself, about the defense being presented, and he didn’t want to claim innocence — he simply didn’t want to concede guilt.

Those differences are partially why the state has argued Coble’s petition should be denied and his execution carried out. The state claimed Coble didn’t complain about his lawyer’s strategy until he was in the appeals process, which the McCoy ruling doesn’t apply to, and that courts already rejected Coble’s earlier appeals based on claims of faulty trial lawyers.

“The public’s interest is not advanced by staying Coble’s execution to consider a procedurally defaulted and meritless claim based on a decision handed down three decades after Coble terrorized and murdered his ex-wife’s entire family,” wrote Texas Assistant Attorney General Gwendolyn Vindell in the state’s brief to the high court Monday.

Ellis has countered that the McCoy ruling needed to be clarified to explain if it applies to what happened at Coble’s trial, saying that there are a number of things in the ruling left unclear — like whether defendants need to voice their objection explicitly to the court.

“They’re not schooled in the law, they don’t know what to say, and they don’t even know if they’re allowed to say it,” Ellis told The Texas Tribune on Monday. “It’s a pretty good assumption that the Supreme Court will want to clarify the contours of McCoy in the near future, and I think this is a good vehicle for them to do that.”

If the execution proceeds, Coble will become the second man executed in Texas this year, after Robert Jennings‘ execution last month, and the third in the nation. Five other executions are scheduled in the state through September, according to prison records.