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A judge on Friday signed off on an agreed order between the Cameron County District Attorney’s Office and appellate attorneys for Melissa Lucio that she did not have access to evidence that would have corroborated her story that her 2-year-old daughter died from a fall, not child abuse.
Arturo Nelson, the county’s senior judge who sits on the bench in the 138th state District Court, ordered that the court’s clerk will prepare a transcript and and transmit the order, “including the Judgment, Sentence, Indictment, docket sheets, and other exhibits and evidentiary matter filed in the trial records of this cause, to the Court of Criminal Appeals,” or CCA.
He was appointed to the case by Missy Medary, presiding judge of the Fifth Administrative Judicial Region, on April 10, court records show.
Lucio, 55, is the first Mexican-American woman to be condemned to death in Texas.
She was convicted in July 2008 of the murder of her daughter, Mariah Alvarez, and was sentenced to death.
She has long maintained her innocence, saying her daughter fell down a staircase at their Harlingen apartment, and that she falsely confessed after about five hours of interrogation at the Harlingen Police Department.
She narrowly avoided an April 27, 2022 execution by just two days when on April 25, 2022, the Texas Court of Criminal Appeals ruled that four claims in a writ of habeas corpus filed on April 18, 2022 met the requirements to stay her execution.
One of those claims that is at issue in the agreed order is that prosecutors at the time suppressed favorable, material evidence in violation of Brady v. Maryland, which stipulates that prosecutors must turn over exculpatory evidence to defense attorneys.
That evidence included that one of her children actually saw Mariah fall down the stairs, and that her children told Child Protective Services and police that she was not physically abusive to Mariah or the other children. The evidence also included a CPS report where Lucio’s children told an investigator that their mother was worried about Mariah following the fall and was caring for her before the child died.
At the time of her trial, Lucio’s attorneys only had summaries of these reports that left out the exculpatory evidence, according to the order.
In a rare move, Lucio’s appellate attorney, Vanessa Potkin, of the Innocence Project, and Cameron County District Attorney Luis Saenz released a joint statement in early April to MyRGV.com regarding the agreed order.
“Following CCA’s remand and in response to the Court’s directive, the Cameron County District Attorney’s Office undertook further review of Melissa’s case,” the statement reads.
The agreed statement says the joint filing acknowledges that evidence was withheld.
“This joint filing acknowledges that Melissa’s legal team did not have access to information favorable to her defense at the time of trial, thereby entitling her to habeas corpus relief from her conviction and sentence,” the statement reads. “The Agreed Findings of Fact and Conclusions of Law are under review by the trial court.
On Monday, Lucio’s son, Bobby Alvarez, and his son and daughter-in-law, John and Michelle Lucio, released a joint statement on behalf of the family.
“We are grateful to our mother’s legal team for their hard work to bring the truth to light and to D.A. Saenz for taking another look at our mother’s case and recognizing that she did not receive a fair trial and her conviction should be overturned,” the statement read.
It goes on to say that important evidence was never presented to the jury.
“We hope and pray the Court of Criminal Appeals will agree with the District Attorney, the defense, and Judge Nelson and our mother can come home to her family,” the statement read. “It’s been 17 years that we have been without her. We love and miss her and can’t wait to hug her.”
Potkin, Richard Ellis and Sandra Babcock, Lucio’s appellate team, also released a statement about Nelson’s findings.
“Judge Nelson, who presided over Melissa’s trial, found that critical information was withheld from the defense at the time of trial,” the statement read.
It goes on further to reference Lucio’s stay of execution and the Cameron County District Attorney’s Office further review after remand.
“After that review, the DA’s office concluded that the undisputed facts show that favorable evidence was withheld from Melissa’s defense team at the time of trial,” the statement read. “Judge Nelson found that critical information was withheld from the defense at the time of trial and that Lucio ‘met her burden of proof, by a preponderance of evidence, that she would not have been convicted in light of the suppressed evidence.’
“The case now moves to the CCA, which has the ultimate power to decide whether the conviction should be set aside.”
Lucio is incarcerated at the Texas Department of Criminal Justice Patrick L. O’ Daniel facility in Gatesville, Texas.
Editor’s note: This story has been updated with new information.
