Harris County Assistant District Attorney Lance Long said he expected Anthony Pierce, 53, to be sentenced to life in prison.
Peirce's death sentence was commuted to life, not because of evidence but a Supreme Court ruling that those with low IQs cannot be executed. And under laws in effect at the time of Pierce's arrest for the 1977 fatal shooting of a 40-year-old Houston fast food restaurant manager, Pierce could be immediately eligible for parole consideration.
"It would be my position, and I plan on protesting to the parole board, that he should never be released. And they have that option to keep him in for the rest of his life," Long told Eyewitness News.
Parole depends on the state parole board, to which Pierce can appeal.
"There's just no way to formulate a guess as to whether he'll ever be paroled or not," Pierce's attorney, Robert Loper said.
Pierce was convicted and sentenced to death three times for the August 1977 fatal shooting of Fred Johnson during a robbery at a Church's Fried Chicken restaurant. Evidence showed about $80 was taken in the holdup. Pierce, a native of Caddo Parish, La., was 18 at the time.
The new punishment trial was set for Sept. 10.
Robert Loper, Pierce's attorney, said Pierce long has maintained his innocence.
A restaurant employee testified she recognized Pierce as the gunman. A then 12-year-old boy walking by the restaurant testified Pierce was the gunman he saw inside the place and then run away. Records show that after the shooting, Pierce went to a bar and stabbed a man and that he was arrested in front of his apartment a few hours later while bragging to friends about the attacks.
The Texas Court of Criminal Appeals reversed his first conviction in 1980 because of a jury selection problem. Pierce's second trial the following year also was tossed by the appeals court, again because of jury issues. He was tried a third time in 1986. That conviction was upheld in the courts but a federal appeals court said he had poor legal help at his trial that kept jurors from hearing about a childhood of abuse and poverty. Those factors could have been used by jurors when they were deciding whether a death sentence was appropriate for Pierce, the court said.
Prison records show Pierce also has a conviction for involuntary manslaughter for fatally stabbing a fellow death row inmate in 1979. In that case, 37-year-old Edward King died of a single stab wound to the chest. King had been condemned for killing a Dallas police officer.
Johnny Bonds, a former Houston police detective who investigated the restaurant killing, said Wednesday he believed Pierce was a violent person who would kill again.
"He's in good physical health. If they turn this man loose, he will kill again," Bonds said.
The Associated Press contributed to this report.