Every Thursday at 9 a.m. when the Texas Court of Criminal Appeals publishes its orders and opinions online, Melissa Lucio’s family, supporters and lawyers scan the court’s website for the death row inmate’s name.
Caught between freedom and a potential execution for the last two years, waiting for every Thursday morning is all Lucio and her team can do. The 56-year-old, found guilty in 2008 of killing her 2-year-old daughter, Mariah Alvarez, has spent two of her 17 years on death row in a legal limbo as the CCA weighs a district judge’s 2024 recommendation to overturn her capital murder conviction because of withheld evidence. An additional ruling from the judge six months later declared Lucio “actually innocent” of killing Mariah.
If the CCA, which stayed her execution in 2022, upholds the district judge’s recommendation and Lucio is freed, she would be the first woman on Texas’ death row to be exonerated. But because the court has no deadlines for rulings and does not communicate its progress, Lucio’s future remains just as clouded as ever, as she has no more legal recourse beyond waiting for the court’s decision.
A spokesperson for the CCA said the court does not comment on pending cases or disclose its internal procedures.
Despite the wait, Lucio said in a written response to The Texas Tribune through her lawyer that state District Judge Arturo Nelson’s 2024 rulings were a “tremendous relief,” and that her faith and the support of others have kept her resolute through the wait since.
“I am grateful to God who continues to give me the strength to keep my hopes up and has kept me going through this unimaginable ordeal,” Lucio said. “I am lucky to have a wonderful community of people who know I am innocent and have been fighting for my freedom, including my family, my legal team, my faith community, many Texas lawmakers, and so many others.”
One of Lucio’s 14 children, 36-year-old John Lucio, was 17 when his sister died and his mother was arrested, but has never believed his mother committed the crime she was convicted for. Having just left prison himself on a parole violation, he had hoped she would beat him to freedom. He said his mother talks with his wife on the phone almost every day and with him as much as she can, and that their conversations are often spirited and joyful despite the state of her case looming constantly.
“She’s just like, trigger-happy, dialing and dialing and dialing as much as she can until the time runs out,” John said.
Lucio has attempted several appeals during her time on death row, including a habeas corpus claim denied by the 5th Circuit Court of Appeals in 2021. Because her current appeal awaits a ruling from the CCA, the highest criminal court in Texas, any decisive ruling on her cases will be final at the state level and would not be directed to the state Supreme Court. All death penalty appeals go from district courts straight to the CCA. Texas and Oklahoma are the only states that have a separate appeals court for criminal cases.
“Functionally, it’s not that different from a state in which a district court would make a legal conclusion, and then that would be appealable to the highest state court,” said Jordan Steiker, director of the Capital Punishment Center at the University of Texas at Austin School of Law.
Steiker said the two years Lucio has waited for a ruling on the judge’s recommendation is “unusual, but not unprecedented” for a death penalty appeal. Eighteen men on death row have been exonerated in Texas since capital punishment was reinstated in 1982. Of those, at least three have been granted their release through a CCA acceptance of a district judge’s recommendation, according to available court records. The time spans between district judge recommendations and CCA rulings in those cases range from a year to upwards of a decade.
The remaining exonerees either had their convictions thrown out on immediate appeals or were granted relief by federal courts. Another woman on death row, Brittany Holberg, is currently waiting for the full panel of judges on the U.S. 5th Circuit Court of Appeals to rule on whether it will maintain its initial decision to overturn her capital murder conviction. Holberg was convicted in 1998 of killing and robbing an 80-year-old man.
In Lucio’s case, Judge Nelson of Cameron County found in two separate recommendations in April and October of 2024 that county prosecutors in 2008 had suppressed evidence and used flawed scientific evidence and false testimony to secure her conviction. The first recommendation simply recommended her case be overturned; the second declared Lucio “actually innocent” of killing her daughter.
The withheld evidence, including interviews with Lucio’s other children, revealed that what had been framed as murder due to abuse was more likely an accidental death caused by Mariah falling down a flight of stairs days before she died. At least one of the children had seen the fall, and others confirmed her declining health in the following days.
Prosecutors during her trial also relied on a “confession” obtained from Lucio after several hours of interrogation by DPS officers and testimony from a Texas Ranger who asserted he could determine Lucio’s guilt based on her demeanor and body language in the interrogation room. The judge had barred expert testimony aimed at explaining why Lucio, a repeated domestic and sexual abuse victim, would confess falsely under pressure from male authority figures.
Lucio has already filed a motion to expedite in her case to ask the court to rule on the judge’s recommendation, but motions like it do not compel the court to work with any additional speed.
Steiker described the CCA’s decision-making process as a “black box,” but there are some elements known to contribute to added time for rulings. Judges must come to agreement on how to resolve cases, and then write opinions that require more time to review evidence in the case. Dissenting opinions from other judges can double that time as they come to their own conclusions.
“It’s very hard to guess from the outside exactly what’s taking the court so long, but I do think that the best guess is probably that there’s not unanimity about how the court should proceed,” Steiker said.
The strength of the material already available to judges and the public outcry over Lucio’s innocence has added to the pressure on the CCA, Steiker said. Lucio’s conviction has garnered international attention, including a documentary and the condemnation of more than half of the Texas House. Prior to the court granting a stay of Lucio’s execution in 2022, a bipartisan group of lawmakers urged the state parole board to consider Lucio’s innocence.
“I think it’s regrettable that in a case where there’s as powerful evidence as there is that this conviction is problematic, that the CCA hasn’t acted more expeditiously,” Steiker said.
John Lucio helps coordinate many of the decisions surrounding public action supporting his mother alongside advocacy group Death Penalty Action, and said the strength of her support has underscored her innocence even more.
“If this lady I knew I was going to put up a fight for was guilty of murdering my baby sister, I would have just let justice be served,” John Lucio said. “But I know that my mother is not guilty for killing my sister, Mariah, so I had to fight for her life.”
Vanessa Potkin, one of Lucio’s lawyers who works for the Innocence Project, said they are “very hopeful” the CCA will accept the judge’s recommendation and free Lucio. More than anything, John Lucio and his wife, Michelle, said they’re ready to take her into their home in Harlingen any day to live with them and their granddaughter.
Lucio said she looks forward to being reunited with her children and grandchildren if she is released.
“I can’t wait to cook for my family, it’s one of the first things I dream of doing,” she said.
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